law unit 2 test

Authority

is the legal right to make laws to the government which is granted by the constitution (BNA Act – 1867)- governments enforce laws they make through punishments (eg. fines, parole, imprisonment)

BNA Act

passed in 1867 to create the Dominion of Canada and outline its Constitution. Sets out the powers which are federal, provincial, or shared

cicero

he was opposed to what he saw as the dictatorship of the Roman Emperor Julius Caesar - he believed in the idea of justice, equality, and fairness - he also believed that if government enacted evil laws then the citizens can withdraw their support of the government

community standards test

if the courts feel the material may offend some members of the community, then it may be considered obscene

common good

Thomas Aquinas believed that the purpose of law is to defer to the common good. Common good refers to anything that benefits and is naturally shared by all members of a given community

democracy

a system of government where power is in the hands of the people- most democratic countries have representative democracy where power is in the hands of elected representatives; democracy is also criticized for not protecting minorities eg. fight for aboriginal rights

direct democracy

direct democracy is where all of the people vote for issues directly in a referendum or plebiscite

divine law

the law is God's will and people take God's law and incorporate it in the law- no human law can override it

duty

is a responsibility; a moral or legal obligation- rights and duties work together

equality

Treating everyone in the same manner

equity

treating people according to the principles of fairness

federal powers

-ensuring “peace, order, and good government”-national interest-national defence and coast guard, foreign affairs, borders, duties/tariffs, embassies, consulates, criminal law, criminal law, income tax collection, interprovincial issues, immigration management, ocean management, interprovincial transportation, federal police force (RCMP), trade, treaties,aboriginal peoples, employment, currency and monetary policy

minority protections

democracy is also criticized for not protecting minorities eg. fight for aboriginal rights

humanity

kindness toward human kind-International law includes crimes against humanity; genocide and war are examples of this

international law

is the set of rules, norms, and standards generally recognized as binding between states. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights.

Jean-Jacques Rousseau

was a French philosopher who believed in a social contract between the rulers and the ruled in a society- the government ought to govern according to the “general will” of the

people- the governed can remove those in position of power if they choose to do so

John Locke

was English and also studied at Oxford University - he wanted to limit the power of the state and make individual rights more important than the rights of the state

Judicial Committee of the Privy Council JCPC

The JCPC at that time was the final court of appeal for Canadians

Judicial Pragmatism

viewpoint that the United States Constitution holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended- the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time

jurisdiction

the parameters within which power or authority may be exercised- this is more limited than sovereignty Canada's British North America Act (1867) sets out the powers which are federal, provincial, or shared

Law + its purpose

a system of conflict resolution must be developed in a complex, civilized society law is also meant to uphold values shared by societies act as a system which balances the interests of the individual against the interest of the community or society, to pursue good and avoid evil

Living tree doctrine

Lord Sandkey, who wrote the opinion on behalf of the court, proposed a new approach to interpretation of the constitution-”The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits”-the court wanted to allow for a “large and liberal interpretation” of the British North America (BNA) Act so that the federal

government and each provincial government may each be a “mistress in her own house”

morality

a concept which pertains to character, conduct, and the general principles of right conduct- the standards of moral conduct may be determined by religious, cultural, or societal beliefs; the law determines how this applies to the community while respecting individual rights

municipal powers

local issues in cities, towns, townships, counties, districts, regions-property taxes, water, sewer, school boards, local roads, local policing, fire fighting, local transit, playgrounds and recreation centres, libraries, pet bylaws

Natural law

unchanging moral principles common to all people, who strive to be good; an observable law relating to things that occur in nature

Persons case aka Edward’s vs Canada

woman's rights activist Emily Murphy petitioned the government to be considered for a Senate appointment - Prime Minister Robert Borden refused saying that women were not considered legal persons according to the British North America Act - Murphy and four other women (they became known as the Famous Five) asked to government of Canada to refer the question of the status of women to the Supreme Court of Canada - the Supreme Court ruled that women were not eligible to be appointed to the Senate the Famous Five then when to Great Britain and took their case to the Judicial Committee of the Privy Council (JCPC); at the time, this was the final court of appeal for Canada - the JCPC ruled that “qualified persons” included women

philosopher king

Plato, a student of Socrates, he initially believed in the idea of justice administered by a wise man who he called a “philosopher-king”

positive law

law enacted and adopted by government- justice and law not the same; laws were opinions of those who held power at a moment in time- the law is coercive; order must be maintained in society by force; obedience to the law was essential

Power

is the ability to act or refrain from acting

provincial powers

responsibilities considered not important at the time of Confederation in 1867-education, health care, natural resources, inter-city roads, fishing, hunting, trapping, transportation, stock market regulation, incorporation of businesses, insurance, hydro-electric power, stock markets, civil law, wills/power of attorney, birth/marriage/death,post-secondary education, land management, municipalities, provincial sales tax

referendum

 is a direct vote by the electorate on a proposal, law, or political issue.

representative democracy

where power is in the hands of elected representatives; this is also known as indirect democracy; this may be open to abuse when those elected do not listen to the people once elected by breaking their promises

residual powers

Powers not mentioned in the constitution automatically goes to the federal government- Examples: space program, electronic communication

St Augustine

he was bishop of Hippo, Algeria for 34 years- he believed that the Church had a moral duty and authority to act as a check on the abuses of the state- he believed that the Church had a responsibility to exercise a moral veto over any actions which violated God's law

Schools boards

can make decisions regarding local education issues but the provincial government sets policies which govern the whole province

shared powers

agriculture and immigration

social contract

an actual or hypothetical compact, or agreement, between the ruled or between the ruled and their rulers, defining the rights and duties of each. 

textualism

the interpretation of the law is primarily based on the ordinary meaning of the legal text- a method of interpretation that asserts that a statute or words in a constitution should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history- There is no room for interpretation or analysis of the intention of the lawmakers when examining the text of laws

Thomas Aquinas

was a Dominican monk who became an expert on the writings of Aristotle - he believed that the purpose of law is to defer to the common good - a tyrannical law is not law but the perversion of law- the purpose of law is to pursue good and avoid evil

Thomas Hobbes

he was an atheist and a Republican- he believed that citizens give up the right to govern themselves to the ruling power- the ruling power maintains order and the citizens cannot control the rulers

Treaty of Westphalia

from 1648 (Treaty of Westphalia) to 1945, countries would not interfere in each other's affairs; after 1945, sovereignty was not absolute

Justinian

was emperor of the Roman Empire who codified law into the Roman legal system- he believed all people are born free; therefore,slavery was unjust - laws were changed to reflect this; for example a man could not sell his wife to pay a debt or force his daughter into marriage