Unit 1 Law Test

What is law

a series of rules whose purpose is to create and maintain peace and harmony throughout all levels and relationships in society

• governs relationships between individuals, corporations, and countries

• a lawless society is not possible. conflicts invariably occur and need for rules arise

appeal

when higher courts are asked to review a decision of lower court

appellant

person seeking an appeal

• an appeal can be heard of it is determined that the trial judge may have made an error

• the person who appeals must show that the judges interpretation if the law or the facts are wrong

Stare Decisis

“to stand by things decided” is a legal principle that directs courts to adhere to previous judgements - or judgements of higher or tribunals - as it has persuasive and binding authority while resolving a case with allegedly comparable facts

why is stare decisis important

it fosters predictable, unbiased, and consistent development of legal principles, so the notion of stare decisis is favored in judicial systems. it also increases reliance on judicial decisions and adds to the actual perceived integrity of the judicial process

• INTEGRITY, STABILITY, PREDICATBILY

• NOT ABSOLUTE

Time for a case to be tried in front of a judge

superior court case → up to 30 months to be completed

provincials court case → up to 18 months to be completed

anything over → “presumptively unreasonable” and an automatic violation of the charter right

natural law

focuses on a higher order than human authority, such as god(s), the natural world, or morality (punishments for action are based in the situation that the person was in)

positive law

the law is that the lawmakers say it is. law is based on human authority (must be followed no matter what)

legal realism

often called “law in action”. laws are derived from current social interest and public policy, often heavily influenced by politics

Socrates (470-399 BCE) - Natural Law

credited as one of the founders of western philosophy, and as being the first moral philosopher

• believed that natural law must be obeyed in order to have a functioning society

• laws are always just and therefore must be upheld at any cost

• believed in his theories so much that he accepted his punishment

Plato (427-378 BCE) - Natural Law

was a Greek Philosopher and was a student of Socrates, teacher of Aristotle and felt that human reason/common sense should prevail in matters of natural law

• perfect leaders (law makers) do not exist, so laws must be put in place to serve as a check on their tendency to become corrupt

  • man should not obey corrupt natural law

Aristotle (348-322 BCE) - Natural Law

was a student of Plato, however developed quite different political beliefs on justice in society

• introduced the concept of Equity into society, equal is not always fair

  • example: if a child steals a loaf of bread

    • in Plato’s society, the child’s hand will be cut off

    • in his society, the child will be excused for their offence

St. Augustine (354-430 AD) - Natural Law

human law must confirm to divine law

believed:

• natural law should be obeyed before man’s law

• the church should not be separate from the state

Thomas Aquinas (1225-1274) - Natural Law

Humans had ‘natural inclinations’

• Preserving life

• Avoiding offending others

• Educating your children 

• Knowing the truth about God

The church is guardian of the government and law

Corrupt kings should not be obeyed

Laws should support the common God

There is a duty to support the poor

• Canon law is evident in some areas of contemporary law

Thomas Hobbes (1588-1679) - Positive Law

ABSOLUTISM

• Wrote his theories down in a book called “the leviathan”

  • Question: how can humans live together in peace and avoid the danger and fear of civil conflict

  • Answer: a strong ruler is needed to prevent us from our natural state of being (to make us behave and not kill each other) 

• Laws must regulate people's interactions with each other

• Justice and morality depend on obeying the law

• argues that the only way to escape a “state of nature” (state of war) is to develop a social contract

• Citizens must come together in peace, agreeing to a set of laws, and creating a “sovereign”

• This is known as absolutism: one ruler must have absolute power over the people

John Locke (1632-1704) - positive law

• believed that all people were given natural rights. These are the rights God gave Adam upon creation

• There are 3 main natural rights: “life, liberty and property”

• wrote this down in his book: “the treatises of government”

• believed that to defend these natural rights, we need a good government (constitutional government!)

• The constitution is _____ version of a social contract

• If the government failed to protect the people, they have the right to revolution

Jean-Jacques Rousseau (1712-1778) - positive law

• claimed that everyone was born free and equal 

• Societies imposed a sense of ownership over resources and divisions of labor, which they caused conflict and social injustice

“The social contract”: people should follow the laws of the state, as they recognized the benefits of doing so

The state should govern according to the general will of the people and should not fear their government.

Jeremy Bentham (1748-1832) - Positive Law

• Believed in utilitarianism - “the greatest good for the greatest number of people” (common good)

• The legal system should be designed to prevent harm to people and create participating members of society

  • First legal philosopher to introduce the idea of reform instead of punishment

concepts of legal realism

• Judicial decisions: judges don’t just apply the law. Their decisions are often influenced by personal views, societal values, and the specific circumstances of the case

• Law in action: how laws are actually applied in real life situations, not just how they are written in law books

• Social impact: social consequences of legal decisions. Laws are legal outcomes should be evaluated by how they impact society, not just by legal principles

Oliver Wendell Holmes Jr (1841-1935)

• Considered one of the founders of legal realism. He famously stated “the life of the law has not been logic, it has been experience”

• This reflects the idea that law evolves based on societal needs and is shaped by human experience, rather than just logical deduction from legal principles

Karl Llewellyn (1893-1962)

• A leading legal realists in the united states and one of the most prominent theories of the movement

• Critics that legal rules are often ambiguous and emphasised the role of judges in shaping the law based on their understanding of social needs and real world consequences

• Coined the term “law in action” to describe how laws are applied and enforced in the real world, as opposed to how they are written on paper (“law in books”)

Jerome Frank (1889-1957)

• Believed that legal uncertainty is inevitable and that judges’ personal experiences and biases play a major role in their decisions

• Judicial objectivity often obscured the fact that legal outcomes are shaped by subjective factors

  • This is why you can appeal a judges decisions bc biases can occur

• emphasis that law should be understood as flexible and evolving tool shaped by human psychology and the circumstances of the individual

criminology

 crimen (crime) + logos (doctrine)

The study of the nature, causes, and means of dealing with crime

Theories of criminal behavior have always been linked to the underlying beliefs and priorities es of society

• In early society criminal behaviour was often attributed to an evil influence, or possession of the individual by the devil
  

trial by ordeal

• used during medieval times

• a practice by which the guilt or innocence of the accused was determined by subjecting them to painful, or at least an unpleasant, usually dangerous experience

• It was believed that if the individual was innocent, god would protect them against these strange and painful procedures

• There are three types: fire, water, or combat

Cesare Beccaria: classical criminology

• Summarized his theory in his book  “on crimes and punishment”

• His theories emphasized that crime is a rational choice made by individuals based on a cost benefit analysis

• People are motivated by self-interest (not evil influence), so they commit crimes when the benefits outweigh the consequences

• He argued for a legal system where punishments deter crime

• His work laid the foundation for modern criminal justice reform, advocating for fair laws and against harsh, arbitrary punishments.

Jeremey Bentham: Utilitarianism

• Theory is based on the idea that human behaviour is guided by the pursuit of pleasure and the avoidance of pain

• Crime occurs when individuals believe the benefits of committing the crime outweigh the consequences

• Laws and punishments should be designed to maximize societal happiness by deterring criminal behavior. Punishment should only used when it prevents greater harm and should be proportionate to crime to maintain a balance between deterrence and justice

• His ideas helped shape the concept of deterrence in criminal justice 

Cesare Lombroso: biological and psychological theories

• As the fields of science evolved, individuals in the 1900s started looking for biological and psychological reasons for criminal behaviour

• Founded the “positists” school, arguing that some people were “born criminals” (also called “anthropological criminology”)

• believed that criminals were physically different than non-criminals 

  • Certain physical features of “congenital defects” indicated lack of evolution and resulted in savage behaviour

    • Sloping forehead, large ears, pronounced jaws, long arms

  • His work marked a shift from viewing crime as a rational choice to seeing it as a product of biological and psychological factors, through his theories have been largely discredited today

  • No hope for rehabilitation

Sigmund Freud - psychoanalytic theory

• believed that criminal behavior was caused by mental illness or a weak conscience

• He suggested that criminal behavior arises from an imbalance between three parts of the psyche: the ID (instinctual desires), the ego (rational thought), and the superego (moral conscience)

• If the id’s impulses are too strong or if the superego fails to develop properly, individuals may act out in antisocial ways, including committing crimes

• believed that unresolved psychological conflicts, often stemming from childhood, could manifest as deviant behaviour later in life

• Criminals (and others with mental illness) could be treated through “psychoanalysis”. A specific method of dealing with “repressed” or unconscious memories

Karl Marx and Fredrick Engels: conflict theory

• the communist manifesto, 1848

• They argued that criminal behaviour was linked to social and economic inequalities in societies

• According to this theory, laws and the criminal justice system are tools used by the ruling class to maintain power and control over the working class

• Crime arises when individuals, particularly from disadvantaged groups, react to the oppression and exploitation they experience

• The theory argues that what is defined as “criminal” often reflects the interests of the powerful, rather than a universal sense of right and wrong

Emile Durkheim: Social Structure Theory  (1858-1917)

• He argued that crime rates in cities was due to the loss of traditional values and bonds as people moved from small communities and towns to big cities

• Being isolated and anonymous in large cities caused a disconnection with society, and a feeling that the individual was not playing a meaningful role 

• This theory was later combined with the strain theory

The Strain Theory

• Based on the theory that the emphasis on wealth and power has created a situation that those without a quality education or access to good jobs are willing to break the law in order to achieve their goals

• Traditional media and social media “advertise” the lifestyles of the rich and famous, putting pressure on individuals to attain the same level of comforts

• The strain exists between societal expectations with limited opportunities which leads to criminal behaviour to achieve their goals

Contemporary biological and neurophysiological theories

As scientists learn more about the body and brain functioning, and the impact of diet and drugs, they are recognizing that some conditions can influence criminal behaviour

• Biological trait theories:

  • Biological or congenital traits, as well as chemical imbalances in the body can cause a predisposition to criminal behavior

  • Examples include fetal alcohol syndrome (FAS), genetic traits, hormone or chemical imbalances caused by diet, drug use, or genetic factors 

• Neurophysiological theories:

  • Brain monitoring and imaging has enabled doctors and scientists to recognize certain abnormal brain development or functioning

  • It suggests that abnormalities in in the prefrontal cortex (responsible for decision-making and impulse control), can impair a person;s ability to regulate emotions and behaviour, leading to increased aggression or poor decision making

  • Factors like brain injuries, and hormonal imbalances are explored in this theory as potential contributors to deviant or criminal actions

Fundamental Principles of Justice

1. Rule of law

2. Impartiality

3. Equality

4. Fairness

5. The right to be presumed innocent 

Rule of Law

• Individuals must recognize and accept that law is necessary to regulate society

• The law applies equally to everyone, including people in power such as heads of state, police officers, judges, politicians

• No one in our society has the authority to exercise unrestricted power to take away our rights except in accordance with the law

Impartiality

• A decision in a court of law should be based on objective criteria. Bias prejudices should not play a role in a trail

• Judges must demonstrate respect for all people involved in a case and must demonstrate respect for the law in their personal lives.

Equality

the principle that states that government and individuals are subject to the same laws and that all are entitled to equal protection of the law

Fairness

• Fairness in law refers to the process or procedure within the judicial system. A person should know the evidence the crown intends to presents

• Accused should be able to understand court proceedings in order to go to trial

• The idea of fairness also means that bias or prejudice should not play a role in the creation of laws, the arrest procedures or the court processes

Innocent Until Proven Guilty

One of the most important principles of justice is that all people accused of breaking a law are considered innocent until they have been proven guilty in a court of law. This is sometimes called the ‘presumption of innocence’.

Division of Law

Public Law

• Federal and Provincial laws; Criminal Code of Canada

• types: administrative, criminal, constitutional

• basis of decision: “guilty beyond a reasonable doubt”

• case title: R v. Last name

Private Law

• municipalities: small claims court

• types: family, contract, tort, property, employment

• basis of decision: “on the balance of probabilities”

• case title: last name v last name

Jurisprudence

the study, knowledge, or science of law

significance: clarifies legal principles, guides development, ensures justice, connects law with morality, shapes legal systems, and influences judicial decisions.