45-214 Study Guide - Fall 2018, Comprehensive Midterm Notes - Family Law, Canada, Supreme Court Of Canada
12 Oct 2018
School
Department
Course
Professor
45-214
MIDTERM EXAM
STUDY GUIDE
Fall 2018
Lecture #1
Sept 6, 2018
Politics
- Deciding who gets what, when and how – Harold Laswell
- The authoritative allocation of values – David Easton
- What is the object of the opposition, often about the allocation of resources. What is
acceptable social conduct? Which institutions should be put in place?
Law
- The system of rules which a particular country or community recognizes as regulating the
actions of its members and which it may enforce by the imposition of penalties
- What is the rule of law?
• No one is above the law
The Rule of Law
- Relates to accountability
• The idea that the government and private actors are accountable for the law
• If they do not follow the law there will be consequences
- Open government
• The processes by which the laws are enacted, administered, and enforced are
accessible, fair and efficient
- Just Laws
• What would make a law just?
• Evenly applied to everyone
• A law is just when it respects core human rights
• The right to life, liberty and security of the person
• It has to be publicized, if you don’t know what the law is how can you respect the
law?
• It is unjust if it is not publicized
• A law has to be CLEAR, the language of the law has to be understandable
• People need to read laws and know what is means
- Enforceability
• If the law is not being respected, there needs to be mechanisms in place to make
sure they are respected
• This has to be done in a timely manner by actors who are acting competently,
ethically and independently.
Theories of Law
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- Theories of the law address what is or what should be the nature and function of law
- Many theories of the law were developed over time:
• Natural Law Theory
• Legal Positivism
• Legal Realism
• Critical Legal Studies
Natural Law Theory
- Law is given by the sovereign should conform to a higher set of moral principles
- Sovereign = the state, a monarch, the authority of a specific territory
- Moral duties can be discovered in the natural order through reason
- The law exist and humans need to discover it, this can be done through reason
- A religious side, the law is given by god and it is up to humans to determine what is the
will of god
- Used by plato, aritstotle, hobes and st. Augustine
- “an unjust law is no law at all?” – st augustine
- Law and reality are linked whether it is religious or not
Legal Positivism
- Valid law is the command of the sovereign law giver, backed by sanctions imposed by
the sovereign
- Draws line between law and mortality
- Draws line between law and politics
- Law is about what the rule is not what the rule ought to be
- Doesn’t matter if the law is considered just or not
- If it given by the sovereign, it is law
- The law is neutral and should be administered by neutral actors, therefore judges who
apply the law are nonpolitical
Legal Realism
- Critique of legal positivism and natural law theory
- Law is influenced by politics, socio-economic context, and the attitudes of individual
judges
- The older theories provide an unrealistic view of the law
- “the life of the law has not been logic, but experience.” – Oliver Wendell Holmes
- The law will always have a form of bias and will never be completely neutral
Critical Legal Studies
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find more resources at oneclass.com
Document Summary
Deciding who gets what, when and how harold laswell. The authoritative allocation of values david easton. What is the object of the opposition, often about the allocation of resources. The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. What is the rule of law: no one is above the law. Relates to accountability: the idea that the government and private actors are accountable for the law. If they do not follow the law there will be consequences. Open government: the processes by which the laws are enacted, administered, and enforced are accessible, fair and efficient. Just laws: what would make a law just, evenly applied to everyone, a law is just when it respects core human rights, the right to life, liberty and security of the person.
