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Law > Unit 1: Jurisprudence > Flashcards

Unit 1: Jurisprudence Flashcards

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1
Q

What is divine law?

A

law is the product of god’s will, which people incorporate into their own legal code

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2
Q

What is natural law?

A

certain standards have existed and will always exist because the law reflects upon long term standards

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3
Q

What is positive law?

A

law is what the lawmakers say it is

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4
Q

What is legal formalism/letter of the law?

A

Law should merely be applied as it is written

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5
Q

What is legal realism?

A

it is often vague

courts are the real authors of law

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6
Q

What is feminist jurisprudence?

A

legal system that upholds political, economic, and social inequality for woman

this is done because law was often dominated by men

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7
Q

What is law based on economics?

A

Purpose of law is resource allocation

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8
Q

What is virtue jurisprudence?

A

the judge or the law wants to promote the development of virtuous behaviour

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9
Q

What is marxist jurisprudence

A

law is merely a tool for the ruling class

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10
Q

What is sociological jurisprudence?

A

the decision made by the court must be shaped by the social effect it will create

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11
Q

What is spirit of law?

A

it is to read between the lines and often has some type of underlying purpose or meaning

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12
Q

What is popular morality?

A

that societies’ voice should shape the courts decisions when it comes to hard cases

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13
Q

What is critical morality?

A

Are values shaped by the society to see if they’re just and well founded

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14
Q

What is the legal iceberg?

A

The part that is above the water can be easily seen and is described but the part that is underneath the water needs exploration

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15
Q

Explain the charter constitution triangle

A

The charter constitution

statutes (writen law) made by the government

Case/common law made by judge

Traidtions/common law made by precedents

Jurisprudence: history, philosophy, morals, religion, and customs

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16
Q

What are the 3 components of law

A

law as a legal system

law as a legal concept

law as set of rules

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17
Q

What is critical legal studies?

A

Law is not neutral or value free and can often have unpredictability

this is often shown because their are values that a judge has to consider often making a case precedence

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18
Q

What is law as a legal concept

A

it defines into 4 branches: justice, morality, legitimacy, and equality

Often times we conform law as either good or bad but the reality is that we focus more on the quality of the law rather than the purpose of what the law is supposed to achieve

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19
Q

What is law as a legal system

A

comprises of networks by agencies, institutions, and procedures that are set in place to perform other functions

we have things like the jail systems which consists of categories like:

criminal- provincial court - provincial supreme court - provincial court of appeal - supreme court

or

criminal - federal court - federal court of appeal - supreme court

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20
Q

What is law as set of rules

A

it usually talks about when law is our rights and obligations and that it should reflect the societies’ values and beliefs

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21
Q

What is the purpose of law?

(the four categories)

A

Law is an instrument of society: law needs to reflect upon societies’ beliefs and values as well as each law has some type of purpose which has some type of principle

law resolves disputes: within society or community their is often some type of problem and in these cases the law can be used to resolve disputes

law protects people, property, and right: it often makes sure that the law is not going against violations of making a human being feel safe and secure

law brings order to society: it often brings stability and some type of predictability for fairness

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22
Q

What is jurisprudence?

A

it is the study and meaning of law

there are five main concepts: history, religion, philosophy, morals, and customs

three main reasons

understanding the law
able to predict future outcomes
understand our legal heritage

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23
Q

What are the primary sources of law?

A

customs and conventions
religion
social and political influences

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24
Q

Explain customs and conventions

then define conventions

A

it is usually a set of rules developed within ancient times and is usually done through words and is passed down to generations and today it can be see as formal law that is written

Conventions: is usually a verbal communication or a formal agreement that is imposed upon all parties involved

This can also mean that sometimes things are done the way they have always been done

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25
Q

What is religion as a primary source?

A

it is the supremacy of the god that is included in the charter as well as it is also talked about in the 10 commandments of the mosaic law some are used and some aren’t

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26
Q

What is social and political influences as a primary source?

A

so for this we have the facts that it is often characterized by social, political, economical, and cultural aspects

the law has to reflect based upon values and beliefs of the society

laws that are too far behind or too far ahead just simply wont be followed

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27
Q

What are the secondary sources of law?

A

statutes (written law)
constitution
case common law

28
Q

What is constitution as a secondary source

A

constitution is the basic blueprint for all the laws that are involved. This often includes the charter of rights and freedoms as all laws need to be in accordance to the charter of rights and freedom. As well as this was enacted in the 1982. This also gives various levels of government to be able to make a law (jurisdiction)

29
Q

What is statute law as in secondary source?

A

So statute law is passed by electives from the provincial and federal level and can include things like: traffic laws, criminal code, etc

30
Q

What is case law in terms of secondary source?

A

recorded decisions of judges

rule of precedent (stare decisis)

usually judges will extract new legal principles to often apply to new situations

31
Q

Ancient tribal societies

A
  • small bands of hunters so very few people
  • they believed in rules but they were never written down and it was passed by verbal communication
  • there was no punishment except of being an outcast and it was the same for everyone
32
Q

What about Egyptians

talk about 3000 B.C.E

A

religions was a main part because they feared disobeying the gods

rulers and priests worked independently of one another

in around 3000 B.C.E religion and government came together because the pharoahs were seen as a connection to the gods

people had religious and civic duty to obey the laws

33
Q

Hammurabi

A

the king of Babylon hammurabi actually created first ever laws that were carved and written down on a pillar of stone. The first ever written laws that everyone had to comply with and this was because Babylon became a very successful trading centre. The laws were sometimes very harsh and followed the eye for an eye principle of retribution. Everyone was tried till found guilty as well as they didn’t know the difference between accidental and deliberate acts, they were too severe, and sometimes innocents were unfairly punished

34
Q

Mosaic law

A

were laws that were given by the gods meaning that people had very less say in them which is a huge problem because then these laws may not reflect upon societal values and beliefs. They still followed the eye for an eye principle but it was less harsh then Hammurabi, this protected the innocent and they were also able to distinguish between accidental and deliberate acts.

34
Q

Greek law

A

All male citizens are free and equal before the law. They were able to participate in voting rights as well as Greeks were the first civilians to have a jury system which consisted of 1000 men and there was no judge. They would vote on wether the person is guilty or not by a disc; if the disc was solid they are innocent and if the disc had a hole then they are guilty

35
Q

Roman law

A

The romans replaced the greeks and created more laws as the society grew as well as they created something known as the forerunners to lawyers they also created the justinian code made by emperor justinian which reflects our criminal code today

36
Q

British law

A

some laws of british are still in use today but they were invaded by the Anglo Saxons

37
Q

The Anglo Saxons

A

Land was seen as the most important part and was divided into 34 shrines or by provinces. Every land had the same law.

  • shrine courts: met up 2 a year for land titles
  • county courts: met up 1 a month for criminal offenses
  • town courts: met up 3 a year of local offenses

for the longest time the laws were unwritten but they did follow traditions and customs. Not all people were equal under the law especially kings and upper class people. If they couldn’t figure out if someone was guilty or not they used trial by ordeal which is where the god would intertwine if the accused was guilty or not. They did 1 out of the 4 tests:

  • trial by combat: fight with accuser
  • trial by water: if person drowned they were not guilty if they didn’t drown they were guilty
  • trial by hot irons: if the burn are infected: guilty
  • trial by bread and cheese: if they spoke clearly; not guilty
38
Q

The Normans

A

They used to run by the feudal system meaning it would be the king, lord, vassals

they also developed common law and with common law came precedents

39
Q

The three terms under precedents

A

uniformity: similar cases must have similar decisions

predictability: lawyers can advise their clients on the result

impartiality: the judge must not be biased and simply give a decision based on past cases

40
Q

What symbolized the beginning of democracy and by who

A

King John created the Magna carta

41
Q

The French

A

created the civil law which still reflected upon the justinian code.

these laws were more of a inquisitorial trial system rather then adversarial

It is still used in quebec today

42
Q

The Aboriginal

A

created own rules/law
were often communicated verbally came under the Iroquois confederacy
main principle was that hierarchy breeds conflict
they brought in healing and sentencing circles

43
Q

What are the factors that causes the law to change

A

demographic
technology
emergency
differing values

44
Q

What is demographic in terms of law changing

A

the law would change demographically due to birth rate, death rate, immigration, employment, and education rate

so for example if a lot of people stayed in a rural area and are now moving to an urban area then the laws would change to provide a more safer community

45
Q

What is technology in terms of the law changing

A

advancements in technology that are causing a significant change such as laws may need to pass so that their is less pornography distribution, or even when police officers look through devices without a warrant

46
Q

What is change in values in terms of the law changing

A

when a broad spectrum of society decides to change a specific law because it may not meet up with their values or beliefs and this can be done by protests

examples: vaping, smoking, etc

47
Q

What is the national emergencies act in terms of the law changing

A

when a law is passed in response to a national emergency

so for example the war measures act was passed after world war 1 to secure the liberty of each canadian

48
Q

What is rule of law

A

everyone is equal under the law

49
Q

what are the three important factors for rule of law

A

the law brings order to society
law applies equally to everyone
persons legal rights will not be taken away unless if its in accordance with the law

50
Q

What is an independent justice system

A

the judges need to be able to work independently without any relations to any of the government branches

51
Q

What is civil disobedience

A

intentional breaking of the law

is usually non violent and is done to bring change in policies or law that the citizens don’t agree with

52
Q

What is direct disobedience

A

breach of law that is the focus of the protest

fishing rights if they’re taken away then fishers may do the act of fishing

53
Q

What is indirect disobedience

A

violation of law that is not the focus of the protest

violating something but it has nothing to do with the law itself

if you don’t agree with a military policy then you may spray cans on the miliary base

54
Q

What are the types of civil disobedience?

A

integrity based
justice based
policy based

55
Q

What is integrity based civil disobedience

A

when civilians perform in civil disobedience that they think is immoral

56
Q

What is justice based civil disobedience

A

when civilians perform in civil disobedience when they think that their rights are being taken away

57
Q

What is policy based civil disobedience

A

when civilians perform in civil disobedience when they don’t agree with a policy

58
Q

Examples of civil disobedience

A

segregation: rosa parks
civil rights movement: martin luther king jr

59
Q

What are protests

A

a disapproval act or an idea that the civilians don’t agree with

examples
blm
abortion

is protected under the charter of rights and freedom

60
Q

What are petitions

A

are formal requests that are signed by a lot of people on paper or digitally for a law or a policy that they don’t agree with

example
the women suffrage act
bill of rights petition

61
Q

What are lobby groups

A

are organizations that attempt to change a law, policy, decision that is given out by the government or institutions

example
MADD
David suzuki federation

62
Q

What is a royal commission

A

are a group of people chosen by the government to research an issue and recommend any changes

example
royal commission on status of women
royal commission on the status of aboriginal people

63
Q

What are legal scholarship

A

are law school students who inquire about a specific problem or even research about specific problem sometimes causing the government to change these laws

example:
battered woman syndrome

64
Q

Explain the steps to civil law

A

private law
plaintiff v defendant
common or statute law

assault, negligence, landlord and tenant

4 courts
family court
general provincial of division court
court of appeal
supreme court

65
Q

Explain the steps to criminal law

A

public law
Rex V defendant
criminal code or youth criminal justice act

assault, theft, murder

3 levels
ontario court (general and provincial)
court of appeal
supreme court

Law (4 decks)

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