LAW TEST PT2

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