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Midterm Study Guide

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York University
Social Science
SOSC 1375
Olena Kobzar

Saturday October 13, 2012 Law Mid-term Exam Notes - we are interested in the relationship of the law to society, both in the sense of how social norms and values underlie existing laws and in how the law acts to shape social interaction and social change - law is socially embedded in institutions and the letter of the law may be much less interesting than its reasons for existence Shadow Jury - technique used by lawyers in which they realize the jury often makes decision based on empathy and not evidence, since the lawyers are disputing conflicting views on the same matter - Shadow juries, are simulated juries which give their reaction to the lawyer - this helps the lawyer know what evidence they should use for specific points. Peremptory Challenge - allows the lawyer on either side to eliminate a juror without any specific reason; the amount of jurors removed is limited to the case being heard - This lets jurors remove people who they feel will not be sympathetic to their side of the story One Juror Verdict Theory - lawyers pick one juror who they feel will be sympathetic to their cause and sway the opinion of other jurors - they accept the idea that this person’s status in the group will mirror their status in society Challenge for Cause - the act of expelling a jury member for several reasons - such reasons include: their job is on the prohibited list, or they may have heard of the case and have preconceived notions of what they would do - goal is to weed out impartiality - there is no restriction on how many can be made in a case as long as it is made on valid grounds Plea Bargaining - an agreement by the accused to plead guilty in return for the prosecutor’s agreement to take or refrain from a particular course of action - suggested by lawyer when there is no escaping the client’s guilt - there are even 3 types of plea bargaining Charge Bargaining: promise about the nature of charges being laid Sentence Bargaining: involves promises about the ultimate sentence that may be meted out by the court Fact Bargaining: involves promises about the facts that the Crown may bring to the judge’s attention Bill C-41 - passed in 1996 to reduce disparities in sentencing between judges and cases - it suggests that the sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender - it also lays out the goals of sentencing: denunciation, specific deterrence, general deterrence, incapacitation, rehabilitation Sentencing Circles - seek the appropriate justice for Aboriginal peoples- restorative justice which seeks rehabilitation - R vs Morin lets us know that they intend to restore balance and harmony in the community - Call upon the community members to join in the circle and discuss the matter at hand - Criticized because they make the victim relive the experience - Don’t promote Aboriginal justice since they are overlooked by the Government - offences, which have minimum punishments above 2 years imprisonment are rarely heard. Often only, offenders who are eligible for a suspended or intermitted sentence it a short jail term with probation, make it before sentencing circle - typically used as a sentencing court after guilt has been established Substantive Law - consists of all laws that set out the rights and obligations of persons. Procedural Law - outlines the steps and procedures involved in protecting and enforcing the rights given under Substantive Law, i.e. the rules of court, etc. Public Law – regulates the relationships between the state and individuals, or between states. Civil Law - regulates the personal relationships between two private parties. Criminal Law – state defined prohibitions with penalties Constitutional Law - Laws establishing the make-up of government and the division of powers between federal and provincial governments. For example, healthcare reforms Administrative Law - governs the activities of administrative agencies of government. Family Law - deals with the relationships between individuals living together. Tort Law - deals with private wrongs committed against one another, e.g. injury caused by negligence. Labour Law - deals with all relationships between employers and employees Rule of Law- states that the law is necessary to regulate society, no one is above the law and we cannot be governed arbitrarily Common Law: law created through judicial decision (precedent) Statutory Law: law created by parliament Unified Court System - this simply means that all level of the court are connected and are centrally manages - this allows for great efficiency and predictability Law as a Technical Game - Complex Rules: players (lawyers, judges juries), function, procedures (jury selection, examination), questions, outcomes Lawyers: specialist in trained in identifying and applying rules, transform the litigants; complaints into legal disputes - in the Palsgraf case the lawyer was specify to the legal dilemma: was the employee negligent? Was the railroad negligent? Judges: hear the case and determine who presents the argument, create case law through their decisions - Canadian Judicial Council (CJC) examines the complaints against judges, but they can only remove the judges who are federally appointed: they must be investigated and removed by parliament - We don’t like to fire judges because if we fire them, then it would put their case conclusions into disrepute Separation Thesis - this is the idea that the law and morality have no place together; the heart of legal positivism - laws don’t always coincide with moral codes - this thesis does not mean that judges and legislatures are concerned only on legal matters and should be quite indifferent to the moral rights and wrongs of the law, it just means it wished to develop an accurate description of the reality of law Natural Law Theory - has its roots set in religious connotations - this consists of laws which has never been distorted - the law is the product of a rational mind - laws that conform with nature are innately just laws since the embody moral principles and prohibit action that are unjust in the sense that they are contrary to the enjoyment to natural human goods - laws should be concerned with private matter - humans are good and the law should reflect this - follows the foundationalist view: laws are discovered not made Legal Positivism - morality is not needed in the law obedience to the law is - law is a list of rules made by the state, who doesn’t need consent, and it is better for the entire common good to follow them - role of the government is to prevent harm - the idea of a law being good or bad has no prevalence to its status; this is the conventionalist view Legal Consciousness - how we perceive the law and how we act in accordance to these beliefs - often formed on the experience of legal processes and not the outcome - there are 3 type of consciousness Before the Law: aw is good and not part of life, but it is respected With the Law: where we begin to understand the flaws and holes in the law Against the Law: skeptic view, no truth in the law at all - we can feel all of these at once because the law is not stagnant (Millie Simpson did) Narratology - storytelling in law - does what traditional reasoning cannot - juries make verdicts off of these stories opposed to following fact - juries make decisions from stock narrative: myths and prejudices embedded within - the ways in which stories are combined is known as the glue - each story is built on doxa: set of unexamined cultural beliefs that structure understanding of everyday happenings - the fact that judges see cases differently, like in Rusk, shows how the story affects people differently - judges have to police the form and content of these stories - essentially, conviction is who gave the better story Moral Panic - disruption which affects the social order of a society - must be an irrational threat: fear of gays Law as Containment - the law is at the center of society as it protects us Sec. 16 of the Criminal Code: 1. Defense of mental disorder – No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. - you cannot understand the consequences of the act 2. Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. 3. Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. Medicalization - the Modern Era: much of what we see as the abnormal now becomes medicalized - its no longer an aberration departing from the right path - it’s a medical problem requiring a medical solution - medicalization of social problems - we no longer define what is normal/abnormal from a moral standpoint we do this with a medical approach; we follow the same processes but the discourse has changed - we would typically make the distinction off of religious doctrine and social norms, as well as nature Legal Pluralism - the idea that there are 2 or more operating legal systems at the same time in the same geographic are Culpability and Responsibility - how do you deal with lawbreakers? - Aboriginal use shame as a first sanction - Murder in western tradition- an offence against the state. In Aboriginal tradition- an offence against the clan of the victim - Criminal activity is a collective responsibility of a tribe - Aboriginal truth- the whole truth is a collection of everyone’s contribution - We see different ways to arrive at truth - In aboriginal trials everyone holds some piece of validity Customary Law - the values of a minority group that form a law, in this case harmonious, we see that it is the whole community must restore the debt of the individual Payback: this is the type of justice in Aboriginal customary law, it involves the community (those related to the victim) bringing harmony to the area by hurting the transgressor (spears, stones) Terrorism - not a traditional war or crime - tried in various ways - deals with state sovereignty and non-intervention Criminal Law Paradigm - has to be done through justice - due process, arrest right way, trial them the right way - individuals are punished for their guilt- we have to have trials and only punish them according to the law (set out before trial and is equal) - guilt must be proven in a court of law - due guarantees- you have certain expectations of the law - killing is only permitted if used for self defense and/or immediate necessity of saving more lives - ICC falls under here—we capture people first War Paradigm - when someone is presented as an enemy they can be killed - soldiers are not guilty of anything - you have the right to kill - deadly force against combatants is legitimate-irrespective of immediate threat level: you can kill whenever your want - Legitimate Targets: combatants belong to an identifiable group (uniform, base) - Guilt is irrelevant - No attempt to capture is needed Targeted Killing - when a state decides to target a threat to their country and kills them - hard to difficult w
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