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LAW FULL EXAM STUDYGUIDE- Key Definitions and cases tutorials .docx for sab.docx

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Carleton University
LAWS 1000
Steve Tasson

Key Definitions and cases – Taken from tutorial group handouts Midterm Exam Prep October 22, 2012 Key Terms and Concepts:  Collective Morality:  Legal Moralism:  Community Standards:  Victimless Crime: o example – prostitution: considered a victimless crime because two consenting adults should be able to make a contract and exchange “goods”  Standard of Tolerance:  Harm: re Butler Case: o HARM = 1. anything that “predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men or, what is perhaps debatable, the reverse” •AND 2. Prevent “anti-social” behavior- undermine society‟s “proper functioning” o Case RE: Sexually explicit material – Butler “Avenue Video Boutique in Winnipeg”  the appeal calls into question the constitutionality of the obscenity provisions of the Criminal Code. – Can Parliament legitimately criminalize obscenity?  Issue: terms “indecent”, “Immoral”, and “scurrilous” are not defined in the criminal code – Interpretation attempt left to the role of the judiciary. – Concerns: “The court must determine whether the sexually explicit material when viewed in context of the whole work would be tolerated by the community as a whole.”  Functions of Law: o Social control  Formal social control is characterized by “explicit rules of conduct” , “planned use of sanctions to support the rules” , and “designated officials to interpret and enforce the rules, and often make them.  Law is a form of formal control o Dispute Settlement  Enables through the courts mediation of courts issues involving negation, mediations, forcible self-help, ect. o Social Change  A means of inducing change in society. Changes can be guided and supported by law.  Types of Law: o Substantive laws = consists of the prohibiting of actions by courts (example drug dealing, murder) o Procedural laws = “rules concerning just how substantive laws are to be administered, enforced, changed and used. (Examples would be jury selection or filing charges.) o Public law = deals with governmental structures and duties performed power of officials. It concerns the relationship between the individual and the state. o Private law = concerned with both substantive and procedural rules that govern relationships between individuals. (Examples of this would be laws surrounding private injuries, property, marriage, wills ect.) o Civil law = addresses and is concerned with torts. o Criminal law = deals with criminal acts that are regarded as offences against “the state” or “the people” in the case of a crime there is a result of a punishment by the state. o Case law = “is enacted by judges in cases that are decided in appellate courts” – (pg. 10 of the textbook) o Administrative law = “body of law created by administrative agencies in the form of regulations, orders and decisions” – (pg 10 of the textbook) o Branches in Canadian law are: constituational law, case law, statutory law, administrative and royal prerogative. Key Cases and People:  Little Sister‟s v. Canada (2001)  Jacobellis v. Ohio (1964)  -R.v. Labaye (2005)  -John Stuart Mil - •Mill‟s idea based on human fallibility: “that mankind is infallible; that his truths, for the most part, are only half-truths; … diversity [is] not an evil but a good”  Durkheim “Morality of Law” - Interesting because he was concerned about the idea of what binds societies together. For him he believes what binds a society is to have solidarity with one another and it is a set of shared values. He believes the shared values keep society functioning. - He traces historically by viewing how societies were bound together in the past through mechanical solidarity. - Mechanical solidarity = everyone is pretty much the same - Modern societies have solidarity that is organic, society is a giant organism where all people have a function and a roles that can be different but works together to keep the organism (society) functioning. - Different people have different job and the different roles works together to hold society together - Tradition institutions that provide a shared set of values start to break down and the state ends up stepping in and providing the shared set of values and beliefs. - Law provides shared set of value and assumptions thus become important - Move from repressive law (punishment) into restitutive law (constructive-future oriented- stabilization) - Morality and law go hand in hand within the system September 9, 2012 Key Terms and Concepts:  Precedent: o A situation that happened previously and it is taken into account in a present case  Technicality: o Letting the accuser off the hook because of his rights, which are presented in the Charter of Rights September 17, 2012 Key Terms and Concepts:  Customs vs Conventions o Customs are things you automatically do without thinking and conventions are things you feel a sense of obligation to do. Neither of these have any structured, law administered consequences.  Law as conflict o Law acts as a mediator to conflict. / Webber conflict creates law; no social group has the same interests as another concept.  Parliamentary Supremacy o section 33 of the charter of rights “not withstanding clause”  Legal Realism o “View of nature of law that legal rules are based on judicial decisions given in interest of the larger society and public policy, and not on any dogma or supernatural authority. It defines 'legal rights' and 'legal duties' as whatever the courts say they are.” o by trying to remain essentially neutral legal realists did not challenge any of the fundamental assumptions of law but aimed to point out the weaknesses of the positivist certainty in the “insularity of law”  Law as Consensus o Law as consensus is laws based on the perceived common interests of social groups to maintain social order through what is best for the people. (Note from class)  Natural law o law that answers to a “higher being” …. Could be religiously inspired. (Note from class)  Social Contract o “In social contract theory, persons in the state of nature agree to the provisions of a contract that defines the basic rights and duties of citizens in a civil society.”  Feminist theory o “Feminist theory, which emerged from these feminist movements, aims to understand the nature of gender inequality by examining women's social roles and lived experience; it has developed theories in a variety of disciplines in order to respond to issues such as the social construction of sex and gender.[4][5] Some of the earlier forms of feminism have been criticized for taking into account only white, middle-class, educated perspectives. This led to the creation of ethnically specific or multiculturalist forms of feminism.[6]  Structuralist view  Critical view  Realist View  Four Styles of law: o Penal Style of Social Control = the deviant is viewed as a offender subject to punishment. o Compensatory Style = a person has a contractual agreement and breaks it therefore owes compensation o Therapeutic Style = the deviant‟s behavior dictates a need for help such as psychiatry o Conciliatory Style = deviant represents one side of a social conflict in need of resolution despite who is right or wrong. (example: marital disputes) November 26, 2012 Key Terms and Concepts:  Ideology of Harmony  Due Process  Medicalization of Deviance  Hybridity of Knowledge  DTC‟s October 29, 2012 Key Terms and Concepts:  Oakes test: goal of determining if something breaches the rights and freedoms in the charter.(Info taken from lecture slides) •Question 1: Is there a rights violation? •Question 2: Can these violations be “demonstrably justified in a free and democratic society”? •OAKES Part 1: The objective must be of “sufficient importance” to override the protected right (“Pressing” and “substantial”) Part 2: The “means” chosen are “reasonable and demonstrably justified”. To do this they must meet: •Proportionality test (Dickson, J.) A-.Rational connection between leg means and ends (≠arbitrary) B-.Impair the right as little as possible C-.Proportionality between measures and objectives (more severe the limitation on rights the more crit. the objecti
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