Unit 1: Jurisprudence Flashcards
What is divine law?
law is the product of god’s will, which people incorporate into their own legal code
What is natural law?
certain standards have existed and will always exist because the law reflects upon long term standards
What is positive law?
law is what the lawmakers say it is
What is legal formalism/letter of the law?
Law should merely be applied as it is written
What is legal realism?
it is often vague
courts are the real authors of law
What is feminist jurisprudence?
legal system that upholds political, economic, and social inequality for woman
this is done because law was often dominated by men
What is law based on economics?
Purpose of law is resource allocation
What is virtue jurisprudence?
the judge or the law wants to promote the development of virtuous behaviour
What is marxist jurisprudence
law is merely a tool for the ruling class
What is sociological jurisprudence?
the decision made by the court must be shaped by the social effect it will create
What is spirit of law?
it is to read between the lines and often has some type of underlying purpose or meaning
What is popular morality?
that societies’ voice should shape the courts decisions when it comes to hard cases
What is critical morality?
Are values shaped by the society to see if they’re just and well founded
What is the legal iceberg?
The part that is above the water can be easily seen and is described but the part that is underneath the water needs exploration
Explain the charter constitution triangle
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
What are the 3 components of law
law as a legal system
law as a legal concept
law as set of rules
What is critical legal studies?
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
What is law as a legal concept
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
What is law as a legal system
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
What is law as set of rules
it usually talks about when law is our rights and obligations and that it should reflect the societies’ values and beliefs
What is the purpose of law?
(the four categories)
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
What is jurisprudence?
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
What are the primary sources of law?
customs and conventions
religion
social and political influences
Explain customs and conventions
then define conventions
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
What is religion as a primary source?
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
What is social and political influences as a primary source?
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
What are the secondary sources of law?
statutes (written law)
constitution
case common law
What is constitution as a secondary source
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)
What is statute law as in secondary source?
So statute law is passed by electives from the provincial and federal level and can include things like: traffic laws, criminal code, etc
What is case law in terms of secondary source?
recorded decisions of judges
rule of precedent (stare decisis)
usually judges will extract new legal principles to often apply to new situations
Ancient tribal societies
- 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
What about Egyptians
talk about 3000 B.C.E
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
Hammurabi
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
Mosaic law
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.
Greek law
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
Roman law
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
British law
some laws of british are still in use today but they were invaded by the Anglo Saxons
The Anglo Saxons
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
The Normans
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
The three terms under precedents
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
What symbolized the beginning of democracy and by who
King John created the Magna carta
The French
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
The Aboriginal
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
What are the factors that causes the law to change
demographic
technology
emergency
differing values
What is demographic in terms of law changing
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
What is technology in terms of the law changing
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
What is change in values in terms of the law changing
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
What is the national emergencies act in terms of the law changing
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
What is rule of law
everyone is equal under the law
what are the three important factors for rule of law
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
What is an independent justice system
the judges need to be able to work independently without any relations to any of the government branches
What is civil disobedience
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
What is direct disobedience
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
What is indirect disobedience
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
What are the types of civil disobedience?
integrity based
justice based
policy based
What is integrity based civil disobedience
when civilians perform in civil disobedience that they think is immoral
What is justice based civil disobedience
when civilians perform in civil disobedience when they think that their rights are being taken away
What is policy based civil disobedience
when civilians perform in civil disobedience when they don’t agree with a policy
Examples of civil disobedience
segregation: rosa parks
civil rights movement: martin luther king jr
What are protests
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
What are petitions
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
What are lobby groups
are organizations that attempt to change a law, policy, decision that is given out by the government or institutions
example
MADD
David suzuki federation
What is a royal commission
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
What are legal scholarship
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
Explain the steps to civil law
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
Explain the steps to criminal law
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
