Canadian Law and Society: Legal Systems, Rights, and Court Structure

What is the primary role of lawyers?

To adjudicate and handle disputes, making decisions and protecting their clients.

How do sociologists view the law differently than lawyers?

Sociologists focus on the 'why' behind laws, while lawyers concentrate on binary decisions and rules.

What is Benjamin Nathan Cardozo's definition of law?

A principle or rule of conduct established to justify a prediction that it will be enforced by courts if challenged.

According to Max Weber, what defines law?

An order guaranteed by the probability of coercion applied by a specialized staff to ensure conformity.

What is the key difference between law and customs or conventions?

Law involves coercive force, while customs are followed without thought and conventions arise from a sense of duty.

What is Donald Black's definition of law?

Law is essentially governmental social control.

Why is it difficult to define law?

Law affects many aspects of life and is constantly changing, making it an ever-moving target for definition.

What does substantive law consist of?

Rights, duties, and prohibitions administered by courts regarding allowed and prohibited behaviors.

What are procedural laws?

Rules concerning how substantive laws are administered, enforced, and used in the legal system.

What is public law concerned with?

The structure of government, duties of officials, and the relationship between individuals and the state.

What does private law govern?

Relationships between individuals, including torts, contracts, property, and family law.

How does civil law differ from criminal law?

Civil law governs private wrongs and allows individuals to seek redress, while criminal law defines crimes and prosecutes offenders.

What is the role of the state in criminal law?

The state takes action against offenders, administering punishment for offenses against the public.

What characterizes socialist legal systems?

Legal systems where the state plays a central role in the regulation of society and the economy.

What is the inquisitorial system in legal tradition?

A system where the judge actively investigates the case, gathering evidence and questioning witnesses.

What is the adversarial system in common law?

A system where two opposing parties present their cases before an impartial judge.

What is the significance of case law in Canada?

Case law consists of written decisions by judges that contribute to the development of law.

What is statutory law?

Law passed by elected officials in legislative assemblies.

What is administrative law?

Law created by government agencies in the form of regulations and decisions.

What is the royal prerogative?

Powers historically belonging to the monarchy, now largely exercised by government ministers.

What functions does law perform in society?

Law serves as a means of social control, promoting conformity and regulating behavior.

What is the role of informal social control in small societies?

Customs and conventions are often sufficient to maintain conformity without formal laws.

How do large, modern societies maintain social control?

Through shared norms and both informal and formal mechanisms of social control.

Why is formal social control needed in Canada?

Due to the presence of diverse people with varying norms, values, interests, and standards, leading to a greater chance of disagreement.

What are some sources of formal social control?

The law, as well as consequences like being fired, demoted, or relocated.

How were disputes resolved in the past?

Disputes were often resolved non-legally, such as by a head of the family acting as an adjudicator.

What role do courts play in modern dispute resolution?

Courts use techniques like negotiation, mediation, and imposing forcible self-help measures.

What is social engineering in the context of law?

Planned and directed social change initiated, guided, and supported by the law.

What types of crimes can police influence the rates of?

Police can influence rates of crimes like drunk driving, but not emotionally driven crimes like murder.

What is one dysfunction of the law related to conservatism?

The law is inherently conservative as it makes past precedents binding, often lagging behind societal changes.

What does rigidity in law refer to?

The law punishes crimes harshly, even in cases where there may be good reasons for the behavior.

How does overregulation manifest in the legal system?

Judges may not consider extenuating circumstances due to set punishments, leading to overly harsh penalties.

What is inherent discrimination in the legal system?

Legal authority often falls unevenly across social groups, leading to harsher penalties for certain demographics.

What is financial discrimination in the context of law?

The high cost of lawyers makes it difficult for those below the upper-middle class to obtain quality legal representation.

What is the Consensus Perspective on law and society?

It views society as functionally integrated and stable, with law existing to maintain order and stability.

Who are the theorists associated with the Consensus Perspective?

Talcott Parsons is a key theorist associated with this perspective.

What is the Social Conflict Perspective on law?

It views law as a weapon in social conflict, used by the ruling class for their own benefit.

Who are the theorists associated with the Social Conflict Perspective?

Richard Quinney and William Chambliss are notable theorists in this area.

What are the three main legal systems identified by Jonathan Turner?

Traditional, Transitional, and Modern legal systems.

What characterizes Traditional legal systems?

Common in hunter-gatherer societies, they have unwritten laws and rely on elders as adjudicators.

What distinguishes Transitional legal systems?

They emerge in advanced agrarian societies with a distinction between substantive and procedural laws.

What defines Modern legal systems?

They are larger and more elaborate, dominated by statutory law and characterized by bureaucratization.

What is Natural Law?

A system of justice believed to be common to all humans, derived from nature rather than societal rules.

What is Legal Positivism?

The view that legal and moral principles are separate entities.

What concept did Montesquieu introduce regarding law?

The separation of powers, suggesting a constitution should have executive, judiciary, and legislature branches.

What is the Functionalist Approach to law?

It views society as an organism where all parts function to maintain societal well-being, including the role of deviance.

What critique is often leveled against the Functionalist Approach?

It tends to advocate for maintaining the status quo, raising questions about whose interests are served.

What does the Conflict and Marxist Approach argue about society?

It posits that society is divided into ruling and ruled classes, with law serving to maintain the interests of the ruling class.

What is Quinney's view on criminal law in capitalist society?

He argues that criminal law is increasingly used to maintain domestic order as capitalist society faces threats.

What is the main argument of Chambliss regarding criminal law?

Acts are defined as criminal because it serves the interests of the ruling class.

What criticism is often directed at the argument that a monolithic ruling class defines criminal acts?

Critics argue it oversimplifies complex social interactions and conceals more than it reveals.

How does Vago critique conflict theory in relation to law?

Vago suggests it implies a simplistic view of evil business people conspiring, which weakens the argument.

What does the Critical Legal Studies Movement argue about the law?

The law is not neutral and outcomes are influenced by the judge's predilections rather than just evidence.

What are some critiques of the Critical Legal Studies Movement?

It is seen as promoting a nihilistic view, teaching cynicism, and advancing leftist values.

What central concern does Feminist Legal Theory address?

It explores sexual subordination and exploitation in the legal profession, highlighting patriarchy as a source of women's problems.

What are the three key themes of Feminist Legal Theory?

Struggle for equality in the legal profession, the law reflecting a male culture, and the law's lack of value-neutrality.

What is Critical Race Theory (CRT)?

A set of ideas asserting that racial bias is inherent in many parts of society, particularly in legal and social institutions.

What historical context led to the emergence of Critical Race Theory?

CRT emerged in the 1970s as a response to the stagnation of civil rights gains from the 1960s.

What does CRT say about the law?

The law is viewed as a social weapon used by the ruling class for their benefit.

What is the concept of 'Double Consciousness' in CRT?

It refers to the internal conflict experienced by marginalized groups, seeing oneself through the eyes of others.

What is the significance of storytelling in CRT methodologies?

Storytelling provides a personal perspective on discrimination that statistics may not convey effectively.

What are the main tenets of Critical Race Theory?

Racism is ordinary, interest convergence exists, races are socially constructed, and unique voices of color are important.

What does 'Interest Convergence' refer to in CRT?

It suggests that the interests of marginalized groups are only recognized when they align with the interests of the powerful.

What does 'Differential Radicalization' mean in the context of CRT?

It describes how dominant society radicalizes different minority groups at different times based on societal needs.

How does CRT view the experiences of BIPOC scholars?

Their personal experiences enable them to perceive race and racism in ways that white counterparts may not.

What is a common criticism of storytelling in CRT?

Critics argue that it may minimize the severity of discrimination and should primarily be told by those who experience it.

What is the relationship between CRT and the Social Conflict Perspective?

CRT supports the idea that powerful people produce legal codes, making the law a tool for oppression.

What does Vago suggest about the law's predictability?

He argues that outcomes are not determined by evidence but by the biases of the judges.

What is the critique regarding the portrayal of the ruling class in legal arguments?

It is seen as overly simplistic and fails to account for the complexities of lawmaking.

What is the role of a good lawyer according to Critical Legal Studies?

A good lawyer can argue convincingly for either side, highlighting the law's lack of inherent bias.

What do Idealists believe about racism?

Idealists believe racism is a social construct that can be undone by eliminating negative stereotypes and promoting positive images.

How do Realists view racism?

Realists see racism as a means of allocating privilege and status in society, beyond just negative impressions.

What is Interest Convergence in Critical Race Theory?

Interest Convergence is the principle that social change for minority groups occurs when their interests align with those of the majority.

Who is Derrick Bell and what did he conclude about civil rights advances?

Derrick Bell is a founding author of CRT who concluded that civil rights advances for blacks coincide with changing economic conditions and elite white self-interest.

What does Revisionist Interpretations of History in CRT challenge?

It challenges majoritarian interpretations of history by providing accounts that align with the experiences of minorities.

What is Liberalism in the context of CRT?

Liberalism is a political philosophy based on individual rights, liberty, and equality before the law, often viewed as color blind.

Define Structural Determinism.

Structural Determinism is the concept that widely shared practices determine social outcomes, often without conscious awareness.

What is the relationship between affirmative action and white supremacy according to CRT?

Affirmative action is viewed as necessary to counteract white supremacy, especially in elite educational institutions.

What is the Black and White Binary in CRT?

It refers to the tendency in CRT to focus on racial dynamics between Black and White individuals, potentially overshadowing other minority groups.

What does Conflict Theory suggest about the law?

Conflict Theory suggests that the law is used as a weapon by the powerful against the powerless.

What disparity exists in sentencing related to crack and powdered cocaine?

Crack cocaine, used more by low socioeconomic Black communities, attracts longer sentences than powdered cocaine, used by wealthier whites.

What percentage of Canada's incarcerated population is Indigenous?

Indigenous people make up 25.4% of the incarcerated population in Canada, despite being only 5% of the national population.

What historical factors contribute to the overrepresentation of Aboriginal people in Canadian prisons?

Factors include the history of colonialism, displacement, and residential schools, leading to socioeconomic disadvantages.

What are the three main categories of disputes courts hear?

Private disputes, public-initiated disputes, and public defendant disputes.

What types of cases do Lower Courts in Canada handle?

Lower Courts deal with less serious youth and adult criminal matters, family, civil, traffic, and municipal bylaw cases.

What is the role of the Court of Appeal in Canada?

The Court of Appeal is the highest provincial court that deals with challenges against decisions made in the Provincial and Superior Courts.

What is the Canadian Charter of Rights and Freedoms?

Enacted on April 17, 1982, it guarantees rights for all in Canadian society and protects civic, privacy, and legal rights.

Why was the Canadian Charter introduced?

It was introduced to give Canada full control over its Constitution, which was previously an act of the British Parliament.

What does the Charter allow regarding affirmative action?

The Charter allows for affirmative action while dealing with equality rights.

What is adjudication in the context of courts?

Adjudication is the process by which courts hear disputes and arrive at an official judgment.

How does poverty relate to legal aid in Ontario?

In Ontario, individuals making more than $14,000 a year cannot access legal aid, which can contribute to higher imprisonment rates.

What rights are guaranteed under Section 7 of the Charter of Rights and Freedoms?

Everyone has the right to life, liberty, and security of the person.

What does Section 8 of the Charter protect individuals from?

It protects against unreasonable search or seizure.

What rights does Section 9 of the Charter provide?

Everyone has the right not to be arbitrarily detained or imprisoned.

What are the rights of an individual upon arrest according to Section 10?

To be informed promptly of the reasons for arrest, to retain legal counsel without delay, and to have the validity of detention determined by habeas corpus.

What rights are granted to individuals charged with an offence under Section 11?

Rights include being informed without unreasonable delay, the right to a trial within a reasonable time, and the presumption of innocence.

What does Section 12 of the Charter state?

Everyone has the right not to be subjected to cruel and unusual treatment or punishment.

What protection does Section 13 provide for witnesses?

A witness's incriminating evidence cannot be used against them in other proceedings, except for perjury.

What does Section 14 ensure for parties or witnesses who do not understand the language of proceedings?

They have the right to the assistance of an interpreter.

What does Section 15 of the Charter guarantee?

Every individual is equal before the law and has the right to equal protection without discrimination based on various factors.