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LAW TEST REVIEW
Legal Heritage Review Notes
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Legal Logic and Fallacies
Legal Reasoning
Deductive Reasoning
Clear, concise, and accurately reflect the current law
Act of making generalized conclusions based off specific scenarios
Inductive Reasoning
Law is clear and the sole question is application of facts of the law
Act of backing up a generalized statement with specific scenarios
Analogical Reasoning
Ability to perceive and use relations between two similar situations or events (using a comparison between something new and something known)
Important cognitive mechanism
Thinking that replies on an analogy
Logical Fallacies
Strawman Argument
Used to toot one's own argument or product as superior
Setting up a dispute or an assertion that is actually not being made
ex: If someone says they like the colour blue, and the other person says no the colour red is better, assuming that the other person hates the colour red.
Appeal to Emotion
Informal Fallacy
Used to conceal the fact that there is no physical evidence
Usually flawed arguments
False Dilemma
Presenting a limited number of options
Forces people to choose between two extremes
Misleading and prevents honesty
Introduction to Law
A series of rules that govern the relationships between individuals, rules that govern the state, and rules that govern the relationships of businesses and other associations that exist in society.
Rule of Law: Every dispute will be settled by a peaceful means, namely by “due process” in the courts, before appointed judges. A principle of Justice stating that the law is necessary to regulate society, that it applies to everyone equally and that people are not governed by arbitrary power.
Ancient laws:
Code of Hammurabi
One of the earliest known collections of codified laws.
Hammurabi: King of Babylon around 1700 B.C.
Around 300 laws, codified and inscribed on stone pillars
“An eye for an eye, a tooth for a tooth”
Retribution: Justice based on vengeance and punishment
Restitution: Payment made by the offender to the victim of a crime.
Examples: If any one accuses another of murder but cannot prove it, then the accuser shall be put to death.
Hebrew/Mosaic Law
Came about around 1400 B.C.
These laws were the Ten Commandments introduced to the tribes of Israel by Moses.
Make up the first 5 books of the old testament of the bible.
Moral laws – on murder, theft, honesty, adultery, homosexuality, etc. Social laws – on property, inheritance, marriage, and divorce.
Examples: Don't embarrass others, Don't take revenge, Don’t attempt to contact the dead
Roman Law
Compiled around 450 B.C., and inscribed on a dozen bronze tablets set up in the Forum.
The Justinian Code was a second set of Roman laws A.D. 565.
The trials:
Trial by ordeal: used only when the sentence for guilt was the death penalty.
Trial by oath helping: Friends of the accused would swear on the Bible that he or she was innocent.
Trial by combat: Determining guilt or innocence by having the parties fight a duel.
In use for over 1000 years
The Emperor Justinian made the Justice system available to everyone in the society, the rich and the poor. “You were innocent until proven guilty”.
In the late 18th century, Napoleon revised the laws of France into the Code Napoleon which is Quebec’s law basis.
Examples: Innocent until proven guilty
The right of personal property, the validity of contracts, the right to vote, the legality of wills, the "right" to pay taxes, the right of appeal and the legal status of corporations.
Feudalism
In 1066, William, Duke of Normandy, (in what is now France) invaded and conquered England.
As the king of England, William introduced a system of government often seen in Europe called the Feudal System.
Characterized by the absence of public authority and the exercise by local lords of administrative and judicial functions formerly (and later) performed by centralized governments; general disorder and endemic conflict
Examples: The feudal lord had the right to take a tenant's land if he died without heirs; if he did have heirs, the lord was entitled to compensation for exercising wardship and granting permission to marry.
Precedent
Evolved from Common law and uses its principles
Refers to a court decision that is considered an authority for deciding subsequent cases involving identical or similar facts , or similar legal issues .
Case Law
In 1066, William the Conqueror defeated King Harold at the battle of Hastings, and was in control of England. His grandson, Henry II, tried to bring consistency and fairness to the law.
“English Law”
Circuit judges traveled to villages to hear cases and began to record the cases and their decisions. This helped to establish a common method of dealing with similar legal cases.
This practice led to a principle known as “stare decisis” which means to “stand by the decision.”
This led to the “rule of precedent”, applying a previous decision to a case that has similar circumstances.
Examples: The concept of common-law marriage, which acknowledges similar rights as those that have a marriage license to couples that are not officially married if several conditions are met.
Rule of Law - Magna Carta
Son of Henry ll, King John, was forced to sign a document called the “Magna Carta” in June of 1215.
Also called the great charter, it established political and civil rights for the people of England, based on the rule of law. “No one was above the law”.
From the Magna Carta came Habeas Corpus, from the Latin “you must have the body”. This was to determine the validity of the arrest.
Examples: No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.
To no one will we sell, to no one will we deny or delay right or justice.
Parliament/Statute Law
Came from Common Law
It was combined with the Law of Equity, where each case must be judged on its merits.
Eventually, many of these decisions were codified and referred to as statute laws.
One of the two main categories of law.
Examples: The laws which are created by elected representatives in the federal Parliament or a provincial Legislative Assembly are usually called "acts" or "statutes".
The process by which a legislative proposal becomes first a bill, and then a law, takes place in Parliament, the product — the statute — is often called an “Act of Parliament”
English Common Law
Feudalism
Upper Class ran their own estates/manors and acted as judges on their lands, which led to unfairness.
Assizes
The King’s solution to this problem was to create Assizes which were composed of traveling judges who held trials/hearings on controversial or disputed cases.
Law’s Concept and System
Concept of Law
The characteristic qualities, values, virtues, and ideas comprising the law. These characteristic qualities give meaning and significance to the system and laws of a society.
Examples: Fairness, equality, authority, etc.
System of Law
As a system, law interconnects the various institutions empowered to carry out the purpose of the law. Institutions may include both the facilities (e.g the judicial system and penal system) and the procedures (e.g bail system and jury system). In total, they form the body of our legal system.
The Law
The actual rules and principles established to govern the conduct of individuals established to govern the conduct of individuals in a society. They include the substantive law (e.g right to a fair trial) and the procedural law (e.g the rules associated with a fair trial)
Ownership: Anything that people own or possess gives them the quality of ownership.
Example: Buying a book gives you ownership of that copy.
Sovereignty: The power of a country to control its own government.
Example: The United States is an example because they have a completely independent government from the rest of the world.
Justice: The quality and rights given towards being just, impartial, or fair.
Example: Protests that lead to a specific human right being acknowledged.
Authority: The power to give orders or make decisions.
Example: A manager has the power to tell its employees what to do and arrange based on the needs of the company.
Legitimacy: The quality of being honest, reasonable, and acceptable.
Example: An individual admitting to their mistake to another.
Equality: Providing equal opportunities to everyone and protecting people from being discriminated against.
Example: Equal job opportunities for a diverse group of people.
Humanity: Human nature in a society towards each other.
Example: The ability for one to have compassion for others.
Rights: Something to which one has a just claim.
Example: People have the right to equal treatment in a society no matter their age, race, or background.
Jurisdiction: The authority (as of a state) to govern or legislate.
Example: The power of the higher court to correct possible mistakes made by a lower court.
Power: The right or ability to govern, rule, or strongly influence people or situations.
Example: The government has the power to create rules for citizens and determine when they are violated.
Duties: Something that you have to do because it is part of your job, or something that you feel is the right thing to do
Example: To show up to work where you had originally agreed to come.
Six Essential Principles of Good Laws
Laws should be fair – they should be approximately the same for ALL members of the society.
Laws should be publicized and understood by all the members of society. The members should be aware of the penalties involved if they break the law and should know what their rights are and what recourse they have if their rights are violated.
Laws should not be capable of being changed to suit the whim of the times or a specific group in the society.
Adequate deterrents or punishments must be provided.
Laws must be recorded in some permanent form. (i.e. Criminal Code)
Laws must be enforceable.
Case Brief: A written summary of a legal decision. Outlining facts, history, issues, outcome, and reasoning of a particular case.
Changes to Law
Demographic Changes
Demography: The study of the people, or population.
Demographic Change: A change in the population which may affect the overall society in the future.
Shifts in the population require a change in the laws.
Examples: Shift in housing, public health, sanitation, equal gender pay, immigration, retirement
Technological Changes
Changes in the law that are based on new inventions and advanced technology that did not exist when a previous law was created.
Federal vs. Provincial
Federal = Criminal law, national defence, trade/commerce.
Provincial = hospitals, municipalities, education.
Examples: Texting and Driving
Value Changes
Values: One’s principles or standards; one’s judgement of what is valuable or important in life.
Past vs. Present: What was accepted behaviour in the past is often no longer accepted today.
Lobby Groups: A number of people trying to influence legislators on behalf of a particular cause or interest.
Examples: Drunk Driving, Women’s Rights, Anti-Smoking, Human Rights, etc.
National Emergency
An urgent and critical situation of a temporary nature that exceeds a province’s ability to cope and threatens the welfare of Canadians and the ability of the government to preserve sovereignty, security, and territorial integrity.
War Measures Act:
Allows the federal government to assume total governing powers in the event of “war, invasion, or insurrection, real or apprehended.”
Suspension of civil rights
Emergencies Act (1988-Present)
Examples: World Wars, Covid-19 pandemic, October Crisis
Conditions that Must Exist for Laws to Change
The Rule of Law
Magna Carta, 1215
Nobody is above the law; Law applies equally to everyone
A Democratic Government
Give people power to change government by voting in free and regular elections
Often comes with a constitution, written or unwritten (UK) which provide clear understanding of citizen’s rights and freedoms
People have right to petition the courts for help
Lobby groups are allowed applies pressure for legal change
An Independent Justice System
Courts not linked to other branches of government
Appeal system (lower courts to supreme courts)
Classes and Types of Law
Public
The area of Law that regulates activities between a state and its citizens.
Constitutional Law
A set of laws containing all the basic rules about how our country operates
Example: The government can make laws about marriage
Administrative Law
The category of public law that governs relations between people on the one hand and government agencies, boards, and departments on the other.
Example: If you are injured on the job in Ontario your case goes to the workplace safety and insurance board who will be the ones to decide how much compensation you will receive.
Criminal Law
The category of public law that prohibits and punishes behaviour that injures people, property, and or society as a whole.
Example: Murder
Private
Regulates disputes between individuals, businesses, or organizations; can also be called civil law.
Tort Law
Covers civil wrongs and damages that one person or company causes to another, when the wrongs or damages arise independently of a contractual relationship.
Example: Can involve individuals suing companies or corporations for damages
Contract Law
The area of private law governing agreements between people or companies to purchase or provide goods or services
Example: Colleen contracts with the Ready to Ride agency to rent a car for a weekend trip.
Family Law
Governs relations among members of a family.
Example: If two people want to get married, the legal procedures needed to be taken would be under family law.
Labour Law
Governs collective bargaining and industrial relations among employers, their unionized employees and trade unions.
Example: Minimum wage, overtime pay, health insurance
Estate/Property Law
Regulates wills and probates, and determines what happens to a person’s property after death.
Applies primarily to the buying, selling, and renting of land and buildings and the use to which lands may be put.
Example: If a person dies without having drawn up a will, this area of law would deal with it.
Aboriginal Law
Earliest aboriginal societies based their laws on oral tradition
1720: The Six Nations or Iroquois Confederacy (Mohawk, Onondaga, Seneca, Oneida, Cayuga and Tuscarora) formed (covers Quebec to western United States)
Constitution eventually recorded in the Great Binding Law, or Gayanashagowa
Covered most of the areas that other codes had
Included emigration, treason, secession
Foundation of many of our civil law principles of justice and fairness
Introduced the concept of “restorative justice”
Offender must “restore” justice by recognizing their crime and take responsibility for their actions
Restore respect between the perpetrator and the victim
Substantive
List rights and obligations of each person in society
Example: A law that allows Canadians to own property and duty of property owners to maintain it, a law that prohibits people from smoking indoors.
Procedural
Outline the steps involved in protecting our rights given under substantive laws.
Example: The neighbor is trespassing. Procedural law outlines the steps you can take to sue them for damaging your property
Legal Theory
Natural Law Theory
Natural Law: The theory that all humans are derived from eternal and unchangeable principles that regulate the natural world, and that people can become aware of these laws through the use of reason-independent of human will.
A society is defined by its communal moral and value system.
Morality and the law are inextricably joined
Law must be concerned about private matters because private matters do affect society.
Natural law proponents agree that it is difficult to find common ground when it comes to morality, not impossible.
Society has the right to determine what's right and not right
Socrates - used the process of dialectic to arrive at the meaning of a term and how it fits into the search for the “good life”.
Tried to discover reason through question and discussion.
Aristotle and Rationalism - Humans are political creatures - cannot be “good” purely because of education.
Rationalism: Process of using reason to analyze the natural world from observation.
Through rationalism, we can determine what is just and unjust
Only law that can control people and convince them to follow rules
St. Thomas Aquinas - (1224 - 1274) - Identified 4 types of law
Own theory of lex
Taught in universities which influenced him to come up with new theories.
Most significant ework: Summa Theologica
Commented on Aristotle's work
Viewed nature of law:
Ordinance of reason
For the common good
Made by a legitimate authority
Promulgated (publicized)
Eternal Law
God’s ultimate understanding of good and bad
Natural Law
Facts about good and bad that can be worked out using reason
Divine Positive Law
Revealed in the scriptures
Human Positive Law
Laws that humans have made in order to achieve a properly functioning society.
Positive Law: Theory that law is a body of rules formulated by the stated, amd that citizens are obliged to obey the law for the good of the state
Wanted law for the good of the society. Influenced by John Locke.
Connection between law and morality is arbitrary.
Enforcing morality on a reluctant population is difficult, opposite view of Nature of Law
Monarchy, Aristocracy, Democracy
Thomas Hobbes - (1588-1679). In “Levitation”, he proposed a new purpose to law.
John Locke - (1632). If the king violated natural rights, then people were justified in rebelling, replacing the government with one that respects natural rights.
Jeremy Bentham and John Austin - People would try to achieve the maximum amount of pleasure and happiness in their lives. Proposed a way to judge law as good or bad - laws would be evaluated by its utility to society as a whole
John Stuart Mill - Similar to Bentham
Jean-Jacques Rousseau - Genève philosopher and writer. His political philosophy
Contributions:
“The Social Contract” and “Discourse on Inequality”, introduced general will and popular sovereignty.
Main concepts: Sovereignty, general will, critic of inequality, education and autonomy, critics of enlightenment ideas
Should focus on the wellbeing of all.
Laws should focus on common good.
Learn through experiences, creativity and critical thinking
Views of Nature of law
Law as an expression of the general will
Enhance freedom and equality
System of government accountable to citizens
Criticized: Hobbesian Philosophy, Lockean Philosophy, Enlightenment Rationalism
Plato - Student of Socrates, teacher of Aristotle
Philosopher of ancient Greece, considered a foundational thinker in western philosophy
Influence on his ideas: Political Instability
Shifting from different political systems many times
Peloponnesian war
Atheient empire fall
Thirty tyrants Role
Socrates Execution
Main concepts:
Furthering common welfare
Should combine persuasion and punishment
Rulers, warriors, producers
Philosopher King: Plato would think that the best rulers would be philosophers because they seek wisdom and truth more.
The Republic: His most famous work
The Laws
Last and most detailed work
Compare Contrast:
Pros and cons of Natural/Positive law
Examples in society: