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Study Guide

[CRIM 335] - Final Exam Guide - Comprehensive Notes for the exam (102 pages long!)

102 Pages
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Department
Criminology
Course Code
CRIM 335
Professor
David Mac Alister

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SFU
CRIM 335
FINAL EXAM
STUDY GUIDE
Module 1 Hua Rights i Cotext
In Western democracies, human rights and civil liberties are an important
But a tension exists between the rights and freedoms held by individuals and the need to
protect collective or community interests. Each society must strike a balance between
individual and collective rights. Often, the individual rights that come under fire are
those of minority in society
Terminology
A human right = something that a person has a right to simply by virtue of being a
human being. It is not a right that they have acquired through contract or some other legal
mechanism; rather, it is something that is innate to all humans. Human rights generally
refer to claims in which someone asserts that others must do something. Rights imply
corresponding duties.
“Civil liberties” has the concept of liberty at its core. A liberty is a synonym for
freedom. When we are at liberty, or have freedom to do something, we are generally
viewed as possessing a privilege. A liberty implies the absence of a duty or the discretion
to do as we please.
Fundamental freedoms are the same as liberties. They involve conduct that we are free
to engage in without restriction. Usually, they refer to freedom from something. For a
freedom to be fundamental, it must be something that is essential to life, particularly life
in a democratic society. We typically think of civil liberties or fundamental freedoms as
being able to engage in action without government interference.
The terminology becomes confusing if we think about a right to a freedom. Some
freedoms are so fundamental that we think of them as being liberties that must be
guaranteed to us. Generally we think that the government is required to respect and
protect our freedomsin this sense, we may have a right to a freedom against the
government or to be let alone in a certain realm of our life.
Critical Views of Human Rights and Civil Liberties
critical views of basic rights documents and fundamental rights theory in general.
Positive Law Critique
Human rights - regarded as superior or higher
o Thus can override other laws, act as limit on powers of state
o A classic problem in the area of rights and freedoms has been ascertaining the
precise content or scope of the concepts.
o Terms like “equality” and “expression” - used to define rights, but the scope is
expanding (eg right not to ingest other people’s smoke, right not to be exposed to
government pesticide)
o If these rights are basic, fundamental, and enduring, how can their content change
over time? Could it be that these rights are not so fundamental after all? Could it
even be that there is no such thing as basic or fundamental rights?
Jeremy Bentham and John Austin criticized natural law
o Said real law is positive law = command of a sovereign backed up by the
threat of a sanction.
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o Adopts utilitarian philosophy, purpose of law is to maximize happiness for the
greatest number.
Utilitarians rejected “natural law” because it had no scientific or empirical basis: it
could not be proven to exist.
Law might coincide with morality, but is not a necessary prerequisite for a law to be
valid.
All positive law is entitled to unconditional obedience, whatever its substance, whether it
follow moral standards or not
Accordingly, there is no need to concern oneself with a search for fundamental rights or
basic liberties, for these are a fiction.
If rely on vague notions of law, and allow it to override positive law, will infuse
uncertainty into law
Positive law carries with it the virtues of certainty, stability, and predictability of
expectations. It allows people to order and structure their affairs in accordance with
known (or at least knowable) law.
Class-Based Critiques
Guarantee on rights are more useful to people with greater wealth/power than those who
do not have
Judiciary, predominantly élite upper-class male, is not the best group to be determining
the scope and limits of the rights of minorities and other underprivileged members of
society.
o Charter rights are vague and abstract judges dealing with charter cases, is an
exercise of political power by upper class elites
o They make interpretations that preserve the existing power structure / status quo
Michael Mandel
Argue that Charter is a powerful threat to the integrity of Canada’s political system
Charter made these rights have become the most important, which has an anti-
democratic effect
Power given to judges
o who represent dominant class
o neither elected nor accountable
o authoritarian, hiding their political choices and ideology under the guise of the
neutral interpretation of the law
Did not improve rights for working class - no greater rights for trade unions; there is no
guaranteed right to strike.
Right to counsel = only a right to underpaid and marginally competent legal aid
representation.
o Guarantee more right to make money for lawyers
Right to a speedy trial ensures the ability of the crime control machine to process an ever-
increasing number of offenders through the system.
Many of the genuine rights developments have advanced the interests of capitalism
(e.g., the elimination of Sunday closing) rather than the poor.
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Description
SFU CRIM 335 FINAL EXAM STUDY GUIDE find more resources at oneclass.com Module1HuaRightsiCotext In Western democracies, human rights and civil liberties are an important But a tension exists between the rights and freedoms held by individuals and the need to protect collective or community interests. Each society must strike a balance between individual and collective rights. Often, the individual rights that come under fire are those of minority in society Terminology A human right = something that a person has a right to simply by virtue of being a human being. It is not a right that they have acquired through contract or some other legal mechanism; rather, it is something that is innate to all humans. Human rights generally refer to claims in which someone asserts that others must do something. Rights imply corresponding duties. Civil liberties has the concept of liberty at its core. A liberty is a synonym for freedom. When we are at liberty, or have freedom to do something, we are generally viewed as possessing a privilege. A liberty implies the absence of a duty or the discretion to do as we please. Fundamental freedoms are the same as liberties. They involve conduct that we are free to engage in without restriction. Usually, they refer to freedom from something. For a freedom to be fundamental, it must be something that is essential to life, particularly life in a democratic society. We typically think of civil liberties or fundamental freedoms as being able to engage in action without government interference. The terminology becomes confusing if we think about a right to a freedom. Some freedoms are so fundamental that we think of them as being liberties that must be guaranteed to us. Generally we think that the government is required to respect and protect our freedomsin this sense, we may have a right to a freedom against the government or to be let alone in a certain realm of our life. Critical Views of Human Rights and Civil Liberties critical views of basic rights documents and fundamental rights theory in general. Positive Law Critique Human rights regarded as superior or higher o Thus can override other laws, act as limit on powers of state o A classic problem in the area of rights and freedoms has been ascertaining the precise content or scope of the concepts. o Terms like equality and expression used to define rights, but the scope is expanding (eg right not to ingest other peoples smoke, right not to be exposed to government pesticide) o If these rights are basic, fundamental, and enduring, how can their content change over time? Could it be that these rights are not so fundamental after all? Could it even be that there is no such thing as basic or fundamental rights? Jeremy Bentham and John Austin criticized natural law o Said real law is positive law = command of a sovereign backed up by the threat of a sanction. find more resources at oneclass.com
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