Legal Theory and Jurisprudence Quiz

• The Canadian Charter of Rights and Freedoms came into effect in 1982.
• The Charter sets out the rights and freedoms that Canadians believe are necessary in a free and democratic society.
• The Charter is part of the Constitution, and all other laws must be consistent with it.
• Charter rights are not absolute and have limitations, such as freedom of expression.
• The Charter protects all people in Canada, including Canadian citizens, permanent residents, and newcomers, but there are exceptions regarding the right to vote (sec. 3) and the right to stay (sec. 6).

Definition of Law

• Law is a set of rules generally obeyed and enforced within a politically organized society.
• Law applies equally to everybody.
• Laws are rules made by government that forbid certain actions and are enforced by courts.
• Law attempts to resolve basic human tensions between the needs of the individual and the community to help people coexist.
• According to the Canadian Department of Justice, law provides a way to resolve disputes peacefully.
• Law aims to prevent recourse to violence, resolve chaos, give order to life, and stabilize interactions.
• Law facilitates peaceful conflict resolution, resolves disputes, ensures and enforces rights, harmonizes relations, and sets expectations of behavior.
• Law reflects society’s values, politics, economy, morality, and ethics, revealing what a society cares about most.

Theories of Law: Natural Law

• Natural Law has a long history that traces to early Western Philosophy.
• Natural Law derives from moral principles that should govern all human conduct.
• Natural Law is connected to and informed by Christian and Judeo-Christian values and different theological belief systems, including Islam, Buddhism, and Sikh law.
• Natural Law has moral content, forms part of moral theory/ethics, and represents moral standards/rules.
• Natural Law is constrained by morality, stating an unjust law isn't law (lex injusta non est lex).
• Examples of laws resting on natural law ideals are the Charter and the U.S. Constitution.
• Problems include lack of a single, clear morality to guide legality, uncertainty about which morality counts, whether law should be secular/product of compromise in diverse countries, and the theory struggles to explain change.

Theories of Law: Positivism

• Positivism is the dominant framing of law today.
• Positivism claims that law is socially constructed (by humans, not by God).
• Positivism states that the law encompasses enacted rules created by legislatures or common law (precedent).
• Positivism is valid because it is enacted by the Sovereign (the state/government) or derived from previous legal decisions.
• Positivism emphasizes a social contract that ties individuals and collectives in a democratic arrangement.
• Positivism includes a system that contains its own logic.
• Important elements of positivism are stability, certainty, and predictability.
• Positivism is technical; it is up to elected officials or judges.
• Under positivism content is less important than following correct legal processes.
• Positivism separates law and morality where law is valid regardless of its moral content.
• Lawmakers interpret law rather than make moral choices.
• Positivism is not amoral; it is not judged by its justice, humanity, or moral content–only how it was created.
• Under positivism, a validly created law is a valid law.

Theories of Law: Legal Realism

• Legal Realism is a critical theory.
• Legal Realism states that law is a rational exercise with judges making logical connections, per natural law and positivism. Law as Predictable:
• Legal Realism notes that the core purpose and work of a lawyer is to predict the law.
• Legal Realism considers that the "life of law [is] not logic, but experience”.
• The main idea of Legal Realism is that in order to predict and understand the law, it is imperative to understand its context and practice.
• Legal Realism includes a study of the political, social, and economic context and includes the personality, temperament of the Judge, and their track record in order to decide based on factors outside of the written laws and moral convictions, that are then used to rationalize decisions.
• It can be applied on all sides of the political spectrum without a consensus on the context.
• 'The Hungry Judge Effect' refers to 'extraneous factors in judicial decisions'.

Theories of Law: Marxist Theory

• Marxist Theory of Law is based on Karl Marx's theories on communism and history
• Marxist Theory states that an individual's position in society is dictated by the economic class one belongs to and their relationship to the means of production.
• Marxist Theory holds that law determines place in society while favouring the bourgeoisie while working against the working class.
• Marxist Theory is critical of the way that law functions to uphold an order that privileges specific classes over others.
• Without revolution/communism, law will subjugate workers and oppress the class.
• Marxist Theory promotes a “dictatorship of the proletariat”—rule by and of the people, in order to empower those without it.
• Marxist Theory argues that Law may not be relevant when people are equal.

Theories of Law: Critical Legal Theory

• Critical Legal Theory has emerged since the late 1970s.
• Critical Legal Theory states there is an “illusory certainty upon which the language of law is based.”
• Critical Legal Theory seeks to look behind what the law says it is.
• Critical Legal Theory looks at how law is intertwined with social issues and certain biases (e.g. racism and gender biases).
• Critical Legal Theory recognizes that power lies behind the law and determines how people experience law.
• Critical Legal Theory considers the purpose of law to maintain the status quo.
• Critical Legal Theory explains that the law is written for those who make the law.
• Critical Legal Theory believes that the law often acts to marginalize certain people and communities.

Theories of Law: Feminist Theories

• Feminist Theories of Law include multiple feminisms and tensions and debates among them, and consider how different 'waves' of feminism have changed over time.
• Feminist Theories of Law point out that history, politics, law, and legal institutions are gendered.
• Feminist Theories of Law consider how most laws are written by men, for men.
• Feminist Theories of Law believes law contains and projects male values (e.g. public and private divide via the Charter and human rights).
• The focus of Feminist Legal Theory is gender as a means of power.
• Feminist Theories of Law argues Gender orders social relations in a patriarchal society, serving the interests of men over others.
• Feminist Legal Theory has contributed immensely to law and legal practice and theory.
• Tensions remain within Feminist Legal Theory, and there is an increased focus on intersectionality and the lens through which power comes and collides, where it interlocks and intersects.

Theories of Law: Anarchist and Libertarian Views

• ANARCHISM is suspicious of all forms of government and state power.
• Anarchists consider government action and law as control and another form of oppression; arguing that all people should be equal and inequalities of wealth and power should be overcome.
• LIBERTARIANISM celebrates individual rights.
• Libertarians contend that the government's role in people's lives should be minimal and that individuals should choose what they want, without state interference (e.g. taxes and family life).
• Libertarians believe people should be allowed to “run their own lives as they wish” (David Friedman) and that government protection (via law) equals government overreach.

Indigenous Law and Legalities

• Colonial violence separated Indigenous peoples from the land, language, community, and legal traditions.
• Indigenous law differs from the law that ‘applies' to Indigenous peoples in Canada.
• Legal pluralism leads to multiple legal systems at once.
• Different premises include Anishinaabe law: no analogue to rights discourse of settler law (though human rights matter!), and that it's unlike Canada's constitutional order.
• Differences arise among Indigenous peoples such as Metis, Inuit, and First Nations (and diversity within) that are not uniform or homogenous among themselves.
• Gift-giving and the belief that everyone is gifted and those gifts must be reciprocated and received, reciprocity and kinship are common themes.
• Indigenous systems include reconciliation (contrast to retribution) and seek to heal relationships when harm has occurred, rather than punishment.
• Focus is on the relational, linking to both land and language.
• Law cannot be separated from the land with both the mind and body.
• The current land is a teacher in its own right.
• Revitalization of Indigenous law and language is key to reconciliation.

Test your knowledge of legal theory and jurisprudence. Questions cover critical legal theory, Marxist perspectives, feminist legal theory, and natural law. Explore the function of law in society, property rights, and the Canadian Charter of Rights and Freedoms.