Crim135 - Topic 1 & 2 .docx

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CRIM 135
Graeme Bowbrick

TOPIC #1 - THE NATURE OF LAW 1. What is law?  Laws are rules that are made through a formal process - a formal process for establishing/enforcing these laws. o Legislature make most of the laws o Courts enforce them. 2. Values: The foundation for laws  Values: general beliefs about right and wrong.  Where do we get these values? Parents, people we admire (celebrities, community leader, teacher, media), religion, philosophical base (thought of who we are, why the world is like this, etc)  The role of values in the law/legal system? All laws are based on values! No such thing as a value-free law, neutral law.  If law reflects values, whose value do they reflect?  Not all law reflect majority, even if government was elected by the people. Eg (39% democratic, 60% don‟t agree but divided up in other parties) o Some reflect majority eg murder o Some may only reflect values of small group of people eg marijuana prohibition  We aspire to have laws that reflect the values of the people (as broadly as possible).  Some law reflect the values of the current politicians. Law also reflect value of judges – who interpret and apply these laws. 3. The Major Theoretical/Philosophical Perspectives on the Law (a) POSITIVISM  Legal process is more important than the specifics of law (moral content).  Concern of what the law IS, rather than what it OUGHT to be.  Knows that there may be separation between law and morality. Sometimes it may reflect what you think is right, or morally wrong, but it is still the law.  As long as law went through valid a process, it‟s a law, and must be obeyed.  The only valid law is the one made by the „sovereign‟ with proper legal authority (king queen, government)  Certainty, predictability = stability.  If validly enacted, then it is the law, then we live accordingly to it  Gives a stable society!  RULE OF LAW - Need common conception of a law. Else there will be corruption, people above the law, etc.  If people pick and choose depending on own morality/judgement, we will have chaos. (eg speeding over 50 is against the law, we wont argue if ticketed. But if no set speed limit, and police decide when the max speed is, we will have an unstable society)  They do care about the content of law, morals, and if it is unjust. Key is if you don‟t like, you can change law through a legal process..  Most widely believed perspective. – Politicians, judges, lawyers, vast majority of Canadians, etc – we agree that if the law exist, we obey them. If we don‟t obey, we accept consequences. (b) NATURAL LAW PERSPECTIVE  Insist upon a clear link between law and morality  If law is immoral or unjust = it is invalid = you can disobey it.  Historically, law would have religious bases – only legit law were those who conform to their faith/god‟s will, bible, etc.  Eg environmentalists, if law does not respect environment, they can disobey.  Main concern: Many variation of natural law. Whose morality? Whose perspective is right/wrong?  Most laws do conform to those of natural law perspective, eg murder (c) LEGAL REALIST PERSPECTIVE  Attempt to explain/predict law  Have to understand context in which law is made/applied o Macro – understand and predict how law will develop by understasnding broad social and political forces that is at work o Micro – personal level, psychological makeup of people directly making/applying law – what motivates them?  If understand all these then we can understand why the law is the way it is. You can understand the law by understanding the reality and the context in which law made/operates  Eg understanding different government means diff laws are being passed. “political context in which the law is made” TOPIC #2 – THE DIVISIONS OF LAW  Positive law - Made through a valid legal process – by legislatures  Other conceptions of law – conceptions based upon religion, etc (certain places in the world) o In Canada, only Positive law, do not count other conceptions of law. A. International Law i. Govern relationships between countries o eg) treaties – how countries structure their relationship  eg NA free trade agreement – structure trading relationships between CA/USA/MEXICO ii. Set international standards of conduct of which both countries/individuals are expected to meet o eg) united nation conven
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