CLN4U Law Exam Review Notes PDF

**[Theories and Concepts of Law sept7]** [Jurisprudence ] Philosophical interpretations of the meaning and nature of law Analyzes, explains, classifies and criticizes entire bodies of law Compares and contrasts law with other fields of knowledge (literature, religion, economics, social sciences)...

**[Theories and Concepts of Law sept7]** [Jurisprudence ] Philosophical interpretations of the meaning and nature of law Analyzes, explains, classifies and criticizes entire bodies of law Compares and contrasts law with other fields of knowledge (literature, religion, economics, social sciences) Seek to reveal the historical moral and cultural basis of a particular legal concept Focuses on finding the answer to abstract question (what is law? How should we decide law?) Includes : Reasons for making and obeying laws, characteristics of good laws, definitions of crime, distinctions between law and justice, ect [Natural v Positive Law] In ancient times theories of law were grouped into 2 headings natural and positive Natural is enteral principle that regulate the world God created these unchangeable laws We can figure these out with reason Some feel the ultimate natural goal is survival, some also say happiness Parents protecting their offspring is an example of natural law It is thought that the better human laws mirror natural law, the better society will function Positive is created by human head of state and citizens are responsible to obey them for the good of the state Eg. traffic laws to keep traffic running smoothly, efficiently and safe [Socrates] Ancient greek philosopher Felt that natural law was essential for society to achieve true justice JUSTICE - when all the power of society are working in harmony for the good of the whole "There is a moral imperative in the law and it must guide people in right living" **[Other Natural Law Theorists Sept 8]** [Plato] Socrate's student Thought humans were social by nature We create society to develop "the good life" "The republic" states that justice is both society and the individual work in harmony An individual is "just" when all of their powers (physical, mental, and spiritual) are working in harmony for the good of the person Person uses reason to determine this balance State achieves justice when all the classes work together in harmony and do not interfere with the other classes Human laws must be based on knowledge of natural laws Do good and avoid evil Education was key - if people knew good, they would do good [Aristotle] Student of Plato Felt that law had a moral purpose Thought that there were three types of people - - - Only law could make these people act morally Still natural law because laws must be based on natural laws [St. Thomas Aquinas] Christian Philosopher 4 kinds of law - - - - People should live on earth in a way that would unite us with God State is not the ultimate authority, but rather the church is since it is in charge of spiritual needs State must be subordinate to the church People are under no obligation to follow an unjust law Laws are just if... - - - - **[Positive Law Theorists (Hobbes, Locke, Bentham, Austin) Sept 11]** [Positive Law] During 16 and 17 century in England, Life was pretty bad People started questioning the idea of natural laws. Where were they? People started believing that the laws were only put in place to insure the survival of the state No moral purpose Obedience was no longer a matter of conscience, but fear of penalties \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- Why obey laws? The fear of getting caught (positive law) morals, guilty (natural law) Betterment of society (Plato/Aristotle) Religious reasons (STA) [Thomas Hobbes (1588 - 1679)] Natural state of humans was perpetual war (disproves of natural law) People constantly trying to strengthen their position We agree to surrender rights to leaders (government) to rule and maintain order through positive laws We give up rights for security [John Locke (1632 - 1704)] Didn't think people were bad, but felt that we were selfish People had **NATURAL RIGHT** - Locke combined natural and positive law Purpose of state was to protect these right If they did not, people had the right to rebel "Father" of American Declaration of Independence [Jeremy Bentham (1748 - 1832)] It is human nature to try and achieve the maximum amount of pleasure and happiness Law was good if it made society as a whole happier Utilitarianism - the greatest happiness for the greatest number [John Austin (1790 - 1859)] Law had nothing to do with morals because religious or moral codes were subjective Good legal system relied on good government making beneficial laws Laws must be obeyed Obedience encouraged by positive and negative reinforcements **[Modern Theories of Law Sept 13]** [Legal Realism] Looks at how law is really is as opposed to hypothetical What *is* law as opposed to how it *ought* to be Is the solution to all cases found in following the legal procedures? Law is all about how the judges interpret the law Judge's background key to how law will be served "Law is a prediction of what the courts will decide" Strict constructionist approach - - Originalist approach - - Activist - - [Marxism] Wrote *The Communist Manifesto* with Frederick Engels Argued that British law favored the upper class (those with means of production) "Law is simply class rule. The ruling class controls the formation of law. Law is an instrument used for maximizing ruling class interests in society and controlling the working class" This idea led to communist revolutions [Feminist Jurisprudence ] Like Marxism, law is thought of as a tool of oppression (over women) Ex. women not considered 'persons' until 1929; women couldn\'t vote until 1918; men could file for divorce for adultery, but women could not 2nd form - womens' needs are different 3rd form - legal institutions try to block women from being in positions of power [Concept of Procedural Law] Quality of a law is determined by whether the procedures used to administer it actually work Focus on the processes of how laws are created, enforced, and adjudicated Fairness is key Must maintain social order [Concept of Restraint of Power] Law's essence is based on the restraint used those in power Need for independent branch of government that can challenge, review, and limits the laws made by the ruling power In Canada, separate court system, Senate, election, ethic committee, Charter of Rights and freedom are examples **[How Are These Theories Seen in Canada Sept 15]** [Restraint of Government Power] Independent bodies in Canadian government to review the government\'s use of power "Checks and Balances" Charter of Right and Freedoms, Courts, Senate, Elections, The Crown Makes sure no is above the law (Rule of Law) - [Positive Law in Canada] State Authority is supreme and must be obeyed Can be seen in the War Measures Act or Anti-Inflation Act Good of the country *can* outweigh the good of the individual Charter Limitations (contains natural law - rights, and positive law - limitations) **[Reasons to Change Laws Sept ??]** **[Changing Laws Sept 19]** [Freedoms ] Freedom of speech Freedom of press Freedom of association Freedom of assembly To limit any of them, limits our ability to change the law Therefore, freedoms are essential to democracy [Rule Of Law] Derived from the Magna Carta (1215) 1. 2. 3. [Challenging Laws in Court] In Canada, a very successful method of change has been through the use the courts Since the Charter of Rights And Freedoms (1982) many people have challenged the 'old' law, claiming that certain laws no longer valid (violate charter) Courts can declare a law unconstitutional and *strike it down* (remove it) [Change as a Result of *Individual* Action] Very act of voting allows us to demand change (but don't always get it - GST) People throughout history have also struggled in other ways to change the law - - - **[Changing Laws as a Result of Collective Action Sept 20]** Change in law is more successful if a large number of people support your cause [Lobby Groups] A number of people who try to influence legislators on behalf of a cause or interest Could be national organizations - - Tries to raise public awareness - Tobacco Sometimes criticized for bribery [Royal Commissions] A board of inquiry appointed by by the government to investigate and report on a particular issue Made up of private citizens and experts Famous case - HIV/Hepatitis contamination by Red Cross - [Legal Scholarships] The use of scholarly journals and books on particular issues to gain legitimacy for concern Battered wife syndrome - - [Political Demonstrations] You have a right to demonstrate your displeasure under s. 2 of the Charter of Rights and Freedoms - Freedom of peaceful assembly Carry signs, read speeches, marches Also take the form of civil disobedience - - **[Primary Sources of Canadian Law Sept 21]** [Religion] Judeo - Christian heritage (old testament values) From the Charter of Rights and Freedoms - "Whereas Canada is formed upon the principles that recognize the supremacy of God and the Rule of God" Both Laws and religion reflect what society as a whole considers good and bad behavior "Thou shall not kill" "every one who commits first degree murder or second degree has committed an indictable offense "Thou shall not steal" - robbery "Thou shall not bear false witness" - perjury [Historical Influences] Ancient Greek - Roman - Aboriginal - British - French - [Customs and Conventions] Like traditions, custom and conventions can by very powerful Custom - long established way of doing something Convention - usually political, unwritten rule that is hard to break without opposition [Social and Political Philosophies] Social movements and emerging political philosophies have had huge impact on Canadian law Usually created out of historical event Holocaust - led to human rights, civil rights legislation \-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-- **[Unit2 - Intro International Law Sept 28]** [Principles of International Law] Function is to govern relationships between countries Smoothes and regulates agreements and disagreements between nations Includes Substantive and Procedural laws Original form was to create boarders. Where did states' land begin and end [What is State Sovereignty] State sovereignty is the right for a country to apply it's own laws and govern itself - International Law helps guarantee state sovereignty, but it also acts as a threat to it - [Need for International Law] The need to international law came about in the same ways that we learned abt in the last unit TECHNOLOGICAL Transportation Multinational business Globalization Space exploration DEMOGRAPHIC Between 1930s and 2000 population has tripled - VALUES Genocide in WWII created awareness of the need for law that protect basic human rights Punish crimes against humanity [The trade off] States *willfully* surrender much of their freedom of sovereignty in order to gain the political, economic, or scientific advantages of cooperation and standardization **[The Development of International Law]** [Compare to Domestic law] In order for any **domestic law** to be effective it must contain 3 things - - - Therefore, in theory, international law should need - - - **The legitimacy of the above relies on states' willingness to observe these bodies of international governance** This rarely happens [How is it Different] In domestic law, we fear the sentence or punishment In international law countries obey the standard agreement when it benefits them - International representation is key, as the consequences for breaking these laws can be harsh [Domestic Law Having an International Impact] Sometimes a powerful country's domestic laws can have international impact - This is proof of how economic strength = international political power China is becoming more powerful [Cross Border Impacts] International law tries to regulate activities of a state that have an impact beyond it's borders Pollution from smoke stack falling on a neighboring country [Sources of International law] Customary law - Treaty law - **[Treaties Oct3]** [The Importance of Treaties] Defined as a binding mutual agreements between countries Like contracts that regulate legal relationships Can be bilateral (2 countries) or multilateral (2+) Canada is engaged in treaties related to hundreds of areas of human activity [Examples of Canadian Treaties] Ice Wine standards with Germany and Austria Protection of migratory birds Great Lakes water quality Atomic energy Border security Extradition NAFTA / USMCA [Stage1/4 - Negotiations] Rules based on the United Nations standards for negotiations (made in '69 and '86) Negotiations must be fully compatible with the principles of and norms of international law Invalid if they are produced using the threat of force [Pt2 - Signing, Ratifying, and Reservations] Successful negotiations produce a mutually agreed text Agreement signed by both parties Treaties and 'Ratified" once they are reviewed and accepted by the government of the countries (cabinet in Canada) Countries' governments can add the Reservations (modifications of the countries obligations) - [3. Implementation] Countries then take steps to makes the treaty's terms part of domestic law - Problems occur in Canada when the proposed treaties are subject to provincial jurisdiction (s. 92) - [4. Dispute Resolution] Disputes usually occur (interpretations of the treaty) Most treaties include a *dispute resolution provision* to outline how these disputes will be settled - **[International Organizations Oct 5]** [Required?] As we know, one threat to international law is the right to state sovereignty International organizations ask member states to forfeit some sovereignty in the name of peace, order, collective security, and co-operation [Early Organizations] Relatively new idea (19 century /1800s) Different purposes - - - - - [Political Organizations] In the area of upholding *international law*, International Political Organizations are very important Provides a forum to work to define, regulate, and enforce international law Human rights are key [League of Nations] Set up after WWI Main fucus to prevent war (discussion instead of war), to maintain world peace States in the League would come to the aid of any other member that was attacked Did not include the U.S Gave us the International Court of Justice, and the International Labor Organization [Why did the League fail?] Countries were not wiling to give up state sovereignty No armed forces No U.S (world power) Some countries not allowed to join (Germany and Russia) Obligations too much to bare for some members (Great Depression) [The United Nations] Created after WWII Similar objectives to the league - - - - [Limitation] Members states agree to follow the Charter of the UN Members are volunteers again , requires countries to give up state sovereignty Is not a world government, it does not make laws Come to agreements (resolutions) - Some are (security related), and carry penalties of sanctions of broken [The Big Five] There are five permanent members of the UN security council U.S, U.K, France, Russia, China Each of these 5 countries have have 'Veto Power'. The power to cancel (veto) any proposed security related resolution Why did the UN do this? - Problems with this? - **[International Court of Justice Oct 16]** **[Customary International Law (The Second Source) Oct 16]** [Customary International Law] As we learned, international law can come from treaties or agreements A second recognized source of International Law comes from the customary practice of states Long tradition of behaviors make up customary international law Recognized by the United Nations to be legally binding [Examples] Laws of War (before Geneva Convention) Laws Against Genocide Crimes Against Humanity Protection of Refugees Humanitarian intervention Laws of the sea [Two Parts] *Past State Practice* Jus Cogens - - - - [Diplomatic Relations] Protection of diplomatic representatives, ambassadors Customs that was recognized as essential Important to negotiations [Diplomatic immunity ] Diplomats are protected from physical harm, and are not subject to arrest or detention Embassies are protected from entry of agents of the hosting country [Diplomatic Asylum] When a citizen of country A seeks asylum in the embassy of country B when in country C Ex. Panama: Manuel Noriega **[Military Conflict and Conflict Resolution Oct 18]** [War Vs. Peaceful Resolution] United Nations mandates that all members states settle disputes peacefully - *The Hague Convention of the Pacific Settlement of International Disputes* (1907) - - - [International Courts] International Criminal Court (ICC) - - Bring people to justice, acts a deterrent Countries must hand-over these criminals, UN can't go take them (can't violate state sovereignty) [Same Old Problem] The Doctrine of State Sovereignty usually allows states to not participate in dispute resolution process if the so choose *"Just War" Is there ever a good time to go to war?* [Legitimate Use of Force Under Modern Law] While waging war is unacceptable under the UN charter, there are some exceptions - - [Authorization From the Security Council] Un security council can recommend the use of force To put an end to unjust hostility Eg. Korean War - North attacked South, war allowed to assist South Problems arise because of Permanent 5 members (West vs. East) [Self - Defense ] Difficult to Define Attempts made to define a number of UN Declarations - Also can be seen in International Court of Justice Decisions - - Acceptable limits - - When is Pre-emptive acceptable? - U.S invading Iraq - - - [Illegal but Legitimate?] Significant International Support - - What are justifiable Exceptions to the Rules Pro - Democratic? Humanitarian *The Responsibility to Protect* Are these justifications a threat to the UN? **[Methods of Avoiding War]** - If UN laws and finger waving is not preventing wars, what else can/does? Most efforts in the last 65 years have been to limit, control, and reduce weapons of mass destruction Even the war in Iraq was using this reason [Arms Control Initiatives] Non-proliferation treaties (1968) Aim is to stop the spread of nuclear weapons Agreement between the Five Nuclear Powers - US, UK, China, Russia (USSR) Other countries agreed not to develop nukes Iran, Libya, North Korea, Israel, India, and Pakistan believed to have Nuclear capabilities [Nuclear-Free Zone] Cant base, or test nuclear weapon in these areas Latin America, Caribbean, South Pacific, South East Asia, Africa, Antarctica Plan to add Sea Bed and The Moon [Transfer Limitation] 1996 *Wassenaar Arrangement* Exports cannot contribute to the development of Nuclear Weapons Canada may have unintentionally helped India acquire Nukes [Test Bans] Stopping Proliferation by banning test explosions Not signed by North Korea, Pakistan, and India Not ratified by China, Isael, US, and others Russia withdrew recently [Security Guarantees] "Negative" security assurances - "Positive" security assurances - [Deterrence Theory] Country X won\'t attack county Y because country Y will retaliate with nukes Worked during the Cold War Dangerously risky mind game Ethnocentrism - calculations of loss Miscommunication Human Character - prisoners' dilemma [Missile Defence] Some countries (particularly the US) want to have missile system that can shoot down incoming nuclear missiles Throws off balance of Power Makes things more dangerous **[Common Heritage]** [What is Common Heritage] Area outside nation states Must be protected for the benefit of all Includes high seas (oceans outside of coastal waters), airspace, Antarctica, Outer Space All are protected/regulated by international laws and treaties [Are These Laws Necessary?] Again, international laws come from the same demand sources as domestics laws Technology - demands laws regarding airspace and outer space Emergencies/values - environment Mankind benefits, not just a State or group of States [Boundary Issues] Antarctica - - - - - The Oceans - - - - [Problems?] Debates between coastal states and international community Sovereignty into the coastal waters set in the 1700s by "cannon-shot rule" - "Innocent passage" allows navigation through coastal waters, no taking of any resources "Hot-Pursuit Doctrine" - states can chase vessels and arrest crews in the high seas if an offense was committed - [Other Issues] In 1935, the U.S claimed all costal territory on the continental shelf (\