Crim week 2 (1)- Rule of Law

What was the main issue in the Fraser v. Canada case?

The case focused on a claim of gender discrimination regarding the right to equality under section 15 of the Charter of Rights and Freedoms.

Torts Law

a wrongful act or an infringement of a right leading to civil legal liability 

• the system of legal rules that provides remedies, typically monetary damages, to individuals who have suffered harm or loss due to a civil wrong committed by another person

What is th role of law

Rule of law:

-Fundamental

-All people are treated equally, by the same standards

-Preamble Constitution Act 198

Basic idea: A collection of ideas that govern how we all relate to each other - the law is free from political influence/no person is above the law

How do we know if a law is valid

Two different approaches:

• Evaluating the validity through the Rule of Law

• Approaches to purpose & study of law (ch 1)

What was the Supreme Court's ruling in Fraser v. Canada?

The Supreme Court ruled in favor of the three retired members of the RCMP.

What did Bill C-7, passed in March 2021, change about medical assistance in dying in Canada?

It allows Canadians to access medical assistance in dying without needing a reasonably foreseeable death.

What are the two sets of safeguards created by Bill C-7?

One set is for those whose deaths are reasonably foreseeable, and the other is for those whose deaths are not but who suffer from a serious and incurable physical illness, disease, or disability.

What are the three main questions regarding taxation, assisted death, and employment preferences?

1. Should high-income earners be more highly taxed than low-income earners?

2. 2. Should physicians be able to provide an assisted death without criminal sanction?

3. 3. Should individuals from historically disadvantaged groups be given preferential treatment in certain kinds of employment?

What is Positivism in the context of legal theory?

Positivism is the theory that law is a valid set of rules determined through a logical system of precedents, rather than through moral considerations.

What do legal positivists prioritize in their analysis of law?

They prioritize adherence to a just legal process over the specifics of law, which may vary over time and space.

What does the term 'sovereign' refer to in Canadian law?

It refers to the supreme authority in an independent political society, specifically the legislative sovereign - Parliament.

How does Positivism relate to the concept of parliamentary supremacy?

Positivism is rooted in the British doctrine of parliamentary supremacy, emphasizing that Parliament can make or unmake any law within constitutional limits.

What is the main argument of those who support Natural Law?

They argue that there are God-given moral values that must inform the operation and study of law.

What is a key issue raised by the Natural Law perspective?

The main issue is determining which law and which morality should prevail when law and morality are considered coincident.

What is the relationship between law and morality according to Natural Law theorists?

Natural Law theorists believe that law and morality should coincide.

What is the role of the social contract in Positivism?

It ties individuals to the collective through a binding, democratically constructed agreement.

What does the term 'legislative sovereign' imply in the context of Canadian law?

It implies that Parliament is the ultimate lawmaker, subject only to self-imposed limitations from the Constitution or judiciary.

What does Positivism suggest about the moral content of law?

Positivists are not concerned with the moral content of the law; they focus on the legality and process.

How does Positivism approach the three main questions regarding taxation, assisted death, and employment?

Positivism provides straightforward answers based on whether those issues are supported by existing law: yes, supportable if this is the law; no, not supportable if this is not the law.

What is the significance of the Income Tax Act in the context of Positivism?

It serves as a reference point for analyzing the legality of taxation policies.

What is the primary concern of Natural Law proponents regarding law?

Their primary concern is ensuring that law reflects moral values.

What does the Positivist view imply about the variability of law?

It implies that the specifics of law will vary across different times and places.

What is the natural law perspective on taxation, assisted suicide, and persons with disabilities?

The natural law perspective suggests that if resources are morally distributed, high-income earners should not be taxed more, assisted suicide is morally repugnant, and persons with disabilities should not receive preferential treatment. Conversely, if resources are unfairly distributed, high-income earners should be taxed more, assisted suicide should not be criminalized, and persons with disabilities should receive preferential treatment.

What is the Achilles' heel of the natural law perspective?

The Achilles' heel is that it requires specification of the moral premises that will be operative at any specific time and place, which can lead to conflicting interpretations.

What is Legal Realism?

Legal Realism is an approach to law that considers not only doctrinal developments but also the social, political, and economic contexts of specific laws. It emphasizes empirical study to understand legal doctrine.

What historical context gave rise to Legal Realism?

Legal Realism began in the early twentieth century in the United States as a reaction to the failure of legal doctrine to predict legal outcomes.

What does a Marxist theory of law emphasize?

Marxism emphasizes that law is created from an irreconcilable conflict between labor and capital, highlighting the role of material circumstances and economic inequality.

How would a Marxist respond to the question of taxing high-income earners?

A Marxist would argue that high-income earners should be taxed more to ensure that those who expend similar amounts of labor are similarly rewarded, addressing discrepancies in financial rewards.

What is Laissez-faire capitalism?

Laissez-faire capitalism is the doctrine that the free market operates best when left unfettered and unregulated by government.

What movement arose in U.S. law schools during the late 1970s?

The Critical Legal Studies movement.

What was the motivation behind the Critical Legal Studies movement?

It arose from discontent among law teachers and social scientists with current forms of legal analysis, similar to the disillusionment that fueled the Legal Realism movement.

What are the implications of differing views on resource distribution in the context of law?

Differing views on resource distribution lead to varied conclusions on taxation, assisted suicide, and the treatment of persons with disabilities.

What is the role of empirical study in Legal Realism?

The realist argues that legal doctrine cannot be understood without a serious empirical study of the social, economic, and political context in which that doctrine takes shape.

two examples of natural law ideals

U.S. Constitution and the Canadian Charter

What is a key criticism of the natural law perspective regarding moral questions?

Main issue: If law and morality are always to be coincident, which law and which morality are to prevail?

How does the Marxist view justify increased taxation of the wealthy?

It justifies increased taxation as a means to rectify disproportionate rewards for labor and to promote economic equality.

What is the significance of the social, political, and economic context in understanding legal doctrine?

Understanding this context is crucial for accurately interpreting and predicting legal outcomes.

What does the term 'critical legal studies' imply about the nature of law?

It implies that law is not just a set of rules but is influenced by social and political factors, challenging traditional legal analysis.

What is the impact of economic inequality on the Marxist perspective of law?

Economic inequality is seen as a fundamental issue that law must address, as it reflects the conflict between labor and capital.

How does the natural law perspective view the moral value of equality of treatment?

It views equality of treatment as a moral value that should take precedence over other considerations.

What is the potential conflict in the natural law perspective regarding assisted suicide?

The conflict arises from differing moral views on whether assisted suicide is acceptable or morally repugnant.

What is the role of law according to the Critical Legal Studies movement?

Law is viewed as a tool that can perpetuate social inequalities and must be critically examined.

How does the natural law perspective differ from the Marxist perspective on law?

Natural law emphasizes moral principles as the basis for law, while Marxism focuses on economic conflict and material conditions.

What is the primary aim of critical legal studies according to Kelman?

To uncover illusion or delusion in the legal form, not to remedy simple ignorance.

How would a Critical Legalist likely view taxation for high-income earners?

They would view high-income earners as deserving of greater taxation.

What is a Critical Legalist's perspective on assisted suicide?

They would see it as a matter of personal choice and dignity.

What stance would a Critical Legalist take on preferential employment for individuals with disabilities?

They would view it as advantageous.

What do feminists argue about the historical perspective of law?

They argue that history—and hence law—has been written from a male point of view, failing to reflect women's contributions.

How does a feminist theory of law view the language and logic of law?

It holds that they reinforce male values and perpetuate male power and female subordination.

What were the main concerns of first-wave feminism?

Social and legal inequalities, lack of educational opportunities, laws of marriage, and the denial of the right to vote.

What characterized second-wave feminism?

It emerged in the late 1960s and 1970s, focusing on issues like birth control access, sexual double standards, and discrimination against women of color.

How did second-wave feminists differ from first-wave feminists in their approach?

Second-wave feminists challenged the culture driving women's subordination, urging changes in both law and lived experiences.

What is the focus of third-wave feminism?

It endorses social activism and critiques established legal notions like reasonableness, objectivity, and neutrality.

What concept has become critical for modern feminists?

Intersectionality, which helps understand how disadvantage manifests through various linkages.

What is the anarchist perspective on government?

Anarchism holds that all forms of government are unnecessary and oppressive.

How do anarchists view inequalities of wealth and power?

They see them as obstacles to overcome that lead to state abuse of power.

What is the central idea of libertarianism?

People should be permitted to run their own lives as they wish.

How do libertarians differ from anarchists regarding social security?

Libertarians celebrate individual rights and reject the social security notions central to anarchist tradition.

What significant critique did second-wave feminists offer compared to first-wave feminists?

They provided a more profound critique of the institution of law itself as contributing to women's subordination.

What issues did second-wave feminists raise regarding working women?

They highlighted the plight of working women and discrimination against lesbians and women of color.

What is a key focus of third-wave feminist legal theory?

A more explicitly radical analysis of the role of law.

What did first-wave feminists primarily strive for?

To address their concerns with respect to equality.

What was the time period of first-wave feminism?

Late nineteenth and early twentieth centuries.

What is a common theme in feminist theories of law?

The critique of male-dominated perspectives in legal structures.

What is the main argument of the Positivist Perspective regarding Fraser v Canada?

Some might be skeptical of the role of the Charter in this case, arguing that judicial decisions that can override legislation are undemocratic, substituting the judgment of non-elected individuals for the democratic will of representative government

What criticism do some have about the role of the Charter in judicial decisions?

Some argue that judicial decisions that override legislation are undemocratic, substituting the judgment of non-elected individuals for the democratic will of representative government.

How do Natural Law advocates view the decision in Fraser v Canada?

It's hard to know what particular morality would be supported: that which saw merit in ensuring that women are not economically discriminated against in relation to the rearing of children, or that which supports the notion that since the law did not specifically discriminate against women, it should be defended.

What are the two camps within the Natural Law Perspective regarding Bill C-7?

One camp ascribes to natural secularism, while the other adheres to a natural theological orientation.

What is the focus of Legal Realists when analyzing court decisions?

Legal Realists focus on the internal logic of the decision rather than its moral implications.

How do Critical Legalists differ from Legal Realists in their analysis of court decisions?

Critical Legalists fuse their analysis with moral judgment and are more likely to be critical or supportive of the court's judgment.

What do Critical Legalists seek to understand regarding Bill C-7?

They want to understand the political, social, and historical backdrop to the legislation.

How might a Marxist Perspective view the court's decision in Fraser v Canada?

A Marxist might support the decision by viewing the plaintiffs as victims of unequal treatment and arguing that the policy deepens economic inequality.

What is a potential concern of the Marxist Perspective regarding increased access to medically assisted death?

It might be seen as diminishing economic productivity and reducing possibilities for productive labor.

What is the general stance of the Feminist Perspective on the Court's ruling in Fraser v Canada?

The Feminist Perspective would likely support the Court's ruling.

What is the position of Libertarians regarding the court's ruling in Fraser v Canada?

Libertarians would likely support the court's ruling as they confront state power.

How do Anarchists view the state in relation to the court's ruling and Bill C-7?

Anarchists are skeptical of the state but support placing female employees within a legal framework similar to that of men.

What is the significance of Bill C-7 from the perspective of Libertarians and Anarchists?

Both view Bill C-7 as a step away from criminalization, allowing more human freedom over one's life.

What is a concern some anarchists might have regarding physician-assisted death?

Some anarchists may argue against providing physicians the power to end lives upon request.

What are the two opposing camps regarding views of law mentioned in the conclusion?

One camp views law as morally neutral exercises of logic and interpretation, while the other sees law as a terrain for moral, political, and economic debate.

How can law serve as both an instrument of oppression and a tool for liberation?

Law can be used to enforce oppressive policies or, conversely, to promote social justice and individual freedoms.