What is Law and Legal Theories

Describe the Drummond case

Jonathan Drummond was born with an injury caused by his mother firing a pellet gun into her vagina (psychiatric reasoning). The defence argued that Mrs. Drummond should not be tried as there was no law against what she had done.

What do s.223(1) and s.223(2) of the Criminal Code state?

A child becomes a human being when it has completely proceeded from the body of its mother whilst living and; a person is guilty of homicide if a child dies after birth from injuries inflicted by that person before birth.

How did the Drummond defence argue sections 223(1) and 223(2)?

Pointed out that Jonathan had no legal status when he was inside the womb according to 223(1) and that since he had not died from his injuries 223(2) did not apply.

How did Judge Hansen rule in the Drummond case?

Ultimately did not alter Parliament's law; stated that the court was meant to deal with the law and not morality, and that it is up to Parliament to change law and policy, so she cannot effectively ignore or alter s.223(1) and (2).

What was the outcome of the Drummond case?

Defence motion to dismiss the charges was granted

What is law as defined by Peter Sheers and Graham Stephenson?

A set of rules generally obeyed and enforced within a politically organized society.

What are the types of laws as rules?

General norms, condition rules, power-conferring rules

Define general norms/standards of behaviour

Rules that prohibit activities (i.e., murder )

Define condition rules

Rules that establish conditions or requirements that must be met for certain activities

Define power conferring rules

Rules that allow you to set terms and conditions that govern relationships ( i.e.contract)

What are the two components of common law?

Precedent and stare decisis

What is stare decisis?

Means to stand by decisions, insists that past decisions are not only to be considered by future decision makers, but followed and seen as binding.

What is the structure of rules

If A, B and/or C (elements or conditions) = X (legal result)

What is the connection between law and rules?

Enforceability, morality, ethics

Define morality

Standards of right and wrong, often associated with personal character

Define ethics

Standards of right and wrong often applied to specific groups

What are the two perspectives of morality and ethics?

Descriptive and normative

Define a descriptive moral perspective

Observing what a particular community perceives as right or wrong without judgement or endorsement

Define a normative moral perspective

Moral systems we believe to have objective truth or set an ideal standard; offending this system is considered immoral

How are ethics and law related?

Ethical rules and standards do not have the status of law, but underlie society’s laws.

If enforceability makes a rule a law, how does enforceability occur?

Through the existence of the state

Define the state

An organized political society that holds supreme authority and sovereignty over a specific territory and its population.

Define politics

About who gets what, when, and how; the decisions about distribution of resources.

Define jurisprudence

The philosophy or science of law; concerns theories used to describe, explain, or criticize the law.

What is an analytical theory of law?

Theories concerned with what the law is; involves critical and value-free assessments of the law, examining internal logic, and investigations more empirical in nature (experience and observation over theory)

What is a normative theory of law?

Theories concerned with what the law ought to be; generally concerns right or wrongness of the law based on conceptions of justice, fairness, and morality. Makes value judgements and is evaluative, not explanatory, depending less on logic.

Define natural law theory

Source of law that is higher than human made (positive) law and with which human-made laws must comply within order to be valid

What is Plato’s legal perspective?

Natural theorist; described the world of Forms as a set of ideals that are eternal ideas of good as a basis for law.

What is Aristotle's legal perspective?

Father of natural theory; saw natural law as being based on virtue and moderation (golden mean)

What is Thomas Aquinas's legal perspective?

Reworked Aristotle's ideas into a Christian context; natural law was associated with divine wisdom that ensured the validity of our positive laws

What was Hugo Grotius’s legal perspective?

Contributed to natural law by secularizing it; grounded natural law in human nature and use of right reason

What was Locke's contribution to legal theory?

Natural law teaches us that we all have equal fundamental rights that no government had the authority to deny its people

What was Hobbes', Locke’s, and Rousseau’s legal perspective?

Social contract theory; early human existence was nasty and brutish, and that to secure safety and happiness we had to agree to be governed by rulers through a contract based on natural law

What was Lon fuller's contribution to legal theory?

Modern natural law; wrote about the connection between law and morality and described eight ways to fail to make a law (internal moral principles of the law), that we must avoid to achieve a just and consistent legal system.

What was Margaret Mead's contribution to legal theory?

Study of human populations revealed common standards of behaviour pointing to the possibility of natural law

What was Dworkin’s contribution to legal theory?

Did not count himself as a natural theorist, but believed in communal principles such as justice and fairness and believed they must inform the law

What are the pitfalls of natural law theory?

Brings up questions of morals and ethics leading to the question of whose moral code we should follow.

Define legal positivism

Theory that the only valid source of law is the rules and regulations set out by the institutions within a society that are recognized as having the power to enact them; focussed on what the law is (analytical jurisprudence)

What was John Austin's contribution to legal theory?

Utilitarian believing the goal of legislation to be the greatest happiness of the greatest number, known for his analytic method using precise terminology to define positivist thinking

What are the four characteristics of legal positivism?

Law is a body of rules distinct from customs or conventions; rules are enacted and applied by public officials; rules are enacted in a legitimate manner; law is backed by the force of the state

What was the legal theory contribution by HLA Hart and Joseph Raz?

Argued that holding positivist beliefs does not prevent moral standards, but law and morality are separate spheres that do not influence each other's validity

What did HLA Hart write about law?

The frailty of language with to respect to law and the gaps within it that can only temporarily be filled by judicial discretion

What is Dworkin’s response to what Hart writes about law?

The gaps within the law will be filled by justice and fairness

What are the pitfalls of legal positivism?

Can allow for an immoral legal system or cruel regime

Define legal realism

A theory that argues a more empirical study on the makings of law and that law is shaped by the context of other disciplines; sees the philosophy of natural law and positivism as unrealistic and flawed

What was Oliver Wendell Holmes’ contribution to legal theory?

Believed that practical experience and predicting what courts would decide was a better approach to the study of law.

How does legal realism view judicial process?

Believe that judicial decisions do not only involve an application of the law, but the personality, morality, biases, and circumstances of the judge themself

What is a pitfall of legal realism?

Pointed out weaknesses in the legal system but did not provide solutions or have power to enact them.

Define utilitarianism

Originating with Jeremy Bentham, measures the worth of actions in terms of the overall happiness they generate (instrumentalist and underlies theories that see law as a tool for social change)

Define the law and economics movement

Measures a law's worth in terms of its capacity to increase social wealth

Define the pure theory of law

An outgrowth of positivism that poses the existence of a basic norm from which all others can be derived, based on a principle of efficiency

Define law and society/sociology of law disciplines

Look at law from a broad social, interdisciplinary perspective and debate whether laws come from consensus or societal conflict

Define Marxist theories of law

Communist policies that address the distribution of wealth and class structure within a society (distributive justice thinking)

Define feminist theories of law

Theories concerning the legal, social, and economic rights of women and how law is written from a male perspective which results in unequal gender roles; focusses on improving opportunities for women.

Define critical legal studies

Outgrowth of legal realism concerned with exposing law as an instrument for the rich and powerful

Define critical race theory

Similar to feminist theory, focussing instead on race-based inequalities.

What are some sub-areas of legal study?

Postmodernism, post-structuralism, deconstruction theory, and discourse analysis