Study Guides (299,284)
CA (140,870)
SFU (4,658)
CRIM (410)
Final

CRIM 135 Study Guide - Final Guide: Canadian Judicial Council, Consolidated Laws Of New York, Criminal Negligence

29 pages143 viewsWinter 2013

Department
Criminology
Course Code
CRIM 135
Professor
Graeme Bowbrick
Study Guide
Final

This preview shows pages 1-3. to view the full 29 pages of the document.
THE NATURE OF
LAW
1. What is law?
Rules that government human conduct
Laws are rules, rules are not laws
Laws are rules that are made through a formal process for establishing and enforcing these laws
Formal processes include courts
2. Values: The foundation for laws
(a) What are values?
Our general beliefs of right and wrong
What we value and what we don’t
Where we get these values?
We get these values from our parents (major roles parents play)
Community leaders help shape our values (people we look to having a leadership role in a major
or minor roles, such as media, politician, celebrities, teachers… etc.)
(b) The role of values in the law/legal system
All laws based on values, all laws reflect on values
No such thing as a “value free” law
Who’s values do they reflect?
-Many laws reflect the value of the people (we’re the ones who turn and make the laws, we’re the
one who choose and elect)
oSuch as people vote for government, government makes the law
oHowever, government isn’t as popular, therefore do not reflect the broad population
oJudges (how do judges apply those laws? Their own values influence how they apply and
interpret the law
oLegislators, politicians
3. The Major Theoretical/Philosophical Perspectives on the Law
Philosophical base of where these values come from, why the world is this way, how is it should be
different?
-Major source: Religion (historically played a major role), a form of philosophy, ideologies (ex:
communism, capitalism)
(a) Positivist Perspective
Maintain that process is more important than substance
Using a proper process to make the law is more important than the moral content of the law
Separation between law and morality
Sometimes the law will reflect morally correct or morally wrong, but it is the law
As long the law went through the valid process, than it is the law
oAlthough it might be unjust or invalid, it is a law
oMade by the sovereign (king or queen, aka people through parliament)
Concerned of what the law is rather than what it ought to be
If we encourage and accept the law what it ought to be, we’re questioning the validity of the
moral judgment
Leads to implication and discussion if the law should be obeyed, as long it is validly
enacted, must be obeyed
Certainty& predictability = stability
oIf you know what the law is, you govern your life accordingly
oIf you don’t have a clear idea what the law is, then we don’t have a common view of what
law is, ends up to chaos
Cares about morality of the law, care if the law is unjust
oDeals with it by changes the law in a legal process
oLobby the bill to decriminalize it
Most widely held view
(b) Natural Law Perspective
Insists on a clear link between law and morality
The unjust or immoral law is not valid = can disobey that law
Historically, it has a religious basis that conforms to God’s will
1
You're Reading a Preview

Unlock to view full version

Only half of the first page are available for preview. Some parts have been intentionally blurred.

oChristian values
Can be based on ideology or some other based in the world, philosophical basis
If it doesn’t conform, don’t obey it
Problem:
oWorks in homogeneous society, doesn’t work on a pluralistic society such as Canada
Question what is correct, who’s moral is correct since it is such a big society
To solve this, go through the positivist perspective through the legal process
Irrelevant?
oReminds us to think about the morality and value of the law
oAnd always be on the guard of the unjust of the law without questioning the law
Don’t object to most laws (most laws have roots in religion)
oOnly reject some laws
(c) Legal Realist Perspective
Not much of a philosophy of law, not of how the law should be
Attempt to explain or predict the law
Argues that you can only really understand the law by understanding the context of how the law
is made or how the law is applied, is all about understanding the overall context
oThe social, economical and political forces at work (Marco level)
oPsychological makeup of law makers (Micro level)
You can understand the law by understanding the morality
THE DIVISIONS OF
LAW
Positive law international law and domestic law
Domestic law substantive and procedural
Substantive public and private
Public constitutional criminal administrative taxation
Procedural laws: law that governs legal processes
-2 types
oCriminal procedure: sets out criminal justice process (when they’re arrested/detained, into
trial, sentencing, appeal)
oCivil procedure: everything else (suing someone etc)
Substantive laws: Rights and responsibilities under the law
Public law: involves a public interest (issues that broadly speaking, concerns society at large)
Private law: involves a predominately private interest
Public Law
Constitutional law: constitution sets up framework for political/legal system (how democracy operates)
-It also promotes/protects core values (freedom of expression, equality, right to free trial)
-Public because we want a clearly defined system for our legal processes etc
Criminal law: law which prohibits the most serious/damaging behaviour towards people and property
-Give us a sense of physical security, and sense of security for our property (will be protected
against others coming and taking/damaging it)
-Fundamentally how does it work? Call the police, which is paid for by everyone through taxes
(pay for crown prosecutors etc too)
-With crime, everyone backs up the victim
Administrative law: going to be the most relevant area of law to you (usually)
-Regulates behaviour of government and its agencies (requires government to behave fairly
towards citizens when it does anything in relation to them (citizens)), requires them to act within
the law
oEx: pass all requirements for your N, go to ICBC and they say “no, I’m not giving it to you
because I don’t like you” – can’t do that because of administrative law
Taxation law: has to be a law authorizing each tax (income tax act, some sort of sales tax act)
-Public interest is in all the things we get for our taxes
Private Law
Contract law: about agreements that are legally binding
2
You're Reading a Preview

Unlock to view full version

Only half of the first page are available for preview. Some parts have been intentionally blurred.

-Exchange of value makes it legally binding (and a contract)
oEx: job: labor for money
-Can only be entered into by people with legal capacity to enter the contract (19+, mental
capacity)
-Phones: have a contract with Rogers, give them money and loyalty for 3 years in return for a
certain level of service and a discount on the phone. If you stop paying your bills, the rest of us
don’t really care about your dispute with Rogers (private interest)
Property law: gives legal recognition to our right to property (if you own it, the law recognizes your
ownership of the property- if the law doesn’t do that, someone could claim your house as theirs)
-2 types of property
oReal property : land and the buildings upon land
Land title registry system keeps track of title to land all over the province and
ownership (formal regulation system)
oPersonal property : everything else (pen, laptop, clothes, car etc)
Present proof of ownership to judge- not as formal regulation
Possession = ownership unless someone can show greater proof of ownership
Tort law: law of private wrongdoing (in contrast to public wrongs- more serious)
-Most significant tort: negligence (car accidents)
-Criminal laws focus on punishment, tort law focuses on compensation
-Ex: If you take a gun and decide to show it off but accidentally hit someone criminal
negligence (really bad negligence)
Public and private laws can overlap
-OJ Simpson put on trial for murder, wife’s family put him on trial for wrongful death and won.
(charged criminally and civilly, only won civil)
-Drunk driving: serious vehicle damage and to driver (impaired driving and possibly impaired
driving causing bodily harm, sued by other driver for tort of negligence, pay for repair for car and
other person)
oCriminal and tort law consequence
Legislation
Law made by elected representatives > laws made by judges
Primary legislation: comes in form of statute
-Power to make legislation comes from the constitution (starting point), most basic/fundamental
law there is, where all legal power resides, flows from there
oAllocates legislative power to legislatures (11 in Canada- 10 provincial legislatures and
the federal legislature (parliament in Ottawa))
Can delegate powers to others
oDivides according to jurisdiction
oProvincial and federal
oAll 10 have the same power, exercised within their provinces
oFederal: for the whole country
-Criminal law, foreign affairs: federal legislative authority
-Health care, education: provincial
-Legislatures can make any law they want as long as it conforms to the constitution (only limit to
their power)
The political process:
The Political and Legislative Process:
A Brief Overview
1. The Political Process
(a) Elections
Every 5 years max. (now 4 years in BC by law)
Candidates seek election to one of 87 seats in the Legislative Assembly (legislature)
There is one seat in the legislature for each of 87 electoral districts around the province
Almost all candidates run for office as part of a political party
To win, a candidate needs only to get more votes than any of the other candidates --
“first past the post” (not a majority of votes)
(b) After the Election – Forming a Government
3
You're Reading a Preview

Unlock to view full version


Loved by over 2.2 million students

Over 90% improved by at least one letter grade.