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JurisprudenceJurisprudence

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Pete and JurisprudencePete and Jurisprudence

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JurisprudenceJurisprudence

Jurisprudence – is the Jurisprudence – is the philosophicalphilosophical interpretations of the meaning and interpretations of the meaning and the nature of lawthe nature of law

May also be intrepreted as an May also be intrepreted as an interlocking set of beliefs and ideas interlocking set of beliefs and ideas that have evolved over time and that have evolved over time and control our behaviour and protect control our behaviour and protect our interestsour interests

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JurisprudenceJurisprudence

What is the purpose of law & where What is the purpose of law & where does it come from?does it come from?

What is law?... more on What is law?... more on jurisprudencejurisprudence

The ultimate legal concept:The ultimate legal concept: Associated with abstract qualities such Associated with abstract qualities such

as justice, legitimacy, equality and as justice, legitimacy, equality and moralitymorality

Concepts of just or unjust, fair or unfair, Concepts of just or unjust, fair or unfair, good or badgood or bad

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JurisprudenceJurisprudence

We value laws for their intrinsic We value laws for their intrinsic qualities rather than for the purposes qualities rather than for the purposes they were meant to achievethey were meant to achieve

Laws usually involve rightness or Laws usually involve rightness or moralitymorality

Society’s view of rightness or Society’s view of rightness or morality changes over timemorality changes over time

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JurisprudenceJurisprudence

Scenario…Scenario… A man’s wife is almost certain to die A man’s wife is almost certain to die

without a certain drug. The druggist who without a certain drug. The druggist who invented the drug won’t sell it to the invented the drug won’t sell it to the husband except at a very high price, more husband except at a very high price, more than the husband can possibly pay. He will than the husband can possibly pay. He will not consider the possibility of receiving not consider the possibility of receiving part of the money later.part of the money later.

Should the husband steal the drug to save Should the husband steal the drug to save his wife’s life? CLASS DISCUSSIONhis wife’s life? CLASS DISCUSSION

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JurisprudenceJurisprudence

Consider… could we eliminate sexual Consider… could we eliminate sexual abuse of children by providing police abuse of children by providing police unlimited access to private homes or unlimited access to private homes or monitoring of all internet accounts (like monitoring of all internet accounts (like employers do)?employers do)?

The purpose of the law is admirable The purpose of the law is admirable (protection of children), but the quality of (protection of children), but the quality of the law itself creates repugnance as the the law itself creates repugnance as the idea of unlimited police intrusion makes idea of unlimited police intrusion makes the law unacceptablethe law unacceptable

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JurisprudenceJurisprudence

We talked about the iceberg analogy We talked about the iceberg analogy previously and how the invisible part previously and how the invisible part of law is the study of law’s origins of law is the study of law’s origins and factors that influence their and factors that influence their development (i.e. politics, religion, development (i.e. politics, religion, economics) that vary between economics) that vary between countriescountries

When we examine the “invisible” When we examine the “invisible” part we understand the values, part we understand the values, mores and folklore of a societymores and folklore of a society

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JurisprudenceJurisprudence

Our sense of justice changes over Our sense of justice changes over timetime Ex. In the 1900’s, it was acceptable for Ex. In the 1900’s, it was acceptable for

students to be punished with whipsstudents to be punished with whips The ideas was that corporal punishment The ideas was that corporal punishment

would ensure maturity and development would ensure maturity and development In the 1960’s, it was (wrongly) In the 1960’s, it was (wrongly)

considered acceptable for a man to beat considered acceptable for a man to beat his wife his wife

Expression, “Rule-of_Thumb” referred to Expression, “Rule-of_Thumb” referred to the maximum size of a rod a man would the maximum size of a rod a man would beat his wife withbeat his wife with

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Patent Sticks for Family Correction – Patent Sticks for Family Correction – Warranted LawfulWarranted Lawful

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Jurisprudence – Due ProcessJurisprudence – Due Process

Due ProcessDue Process helps ensure that justice helps ensure that justice is servedis served

(1) Provides us with rules and (1) Provides us with rules and procedures laid out in statutes and procedures laid out in statutes and court decisionscourt decisions Ex. The Law of Bail in Canada applies to Ex. The Law of Bail in Canada applies to

all of the procedures that must be all of the procedures that must be followed when the police detain any followed when the police detain any citizencitizen

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Jurisprudence – Due ProcessJurisprudence – Due Process

(2) Sets out the rights and (2) Sets out the rights and obligations that society has in legal obligations that society has in legal proceedingsproceedings Ex. Accused doesn’t have to testify, but Ex. Accused doesn’t have to testify, but

a witness to a murder a witness to a murder doesdoes have to have to testify, even if they are a criminal, even testify, even if they are a criminal, even if testifying reveals another, presumably if testifying reveals another, presumably lessor crime, lessor crime, butbut under Common Law under Common Law and the Charter, this can’t be used and the Charter, this can’t be used against themagainst them

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Jurisprudence – Due ProcessJurisprudence – Due Process

(3) Law acts as a mirror – reflects the (3) Law acts as a mirror – reflects the values of societyvalues of society Ex. Criminalization of marijuanaEx. Criminalization of marijuana Ex. Enforcement of speed lawsEx. Enforcement of speed laws Ex. Same-sex marriageEx. Same-sex marriage Ex. Abortion lawsEx. Abortion laws

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Jurisprudence – Rule of LawJurisprudence – Rule of Law

Mr. B. is always right (I wish!)Mr. B. is always right (I wish!)

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Jurisprudence – Rule of LaawJurisprudence – Rule of Laaw

(1) Recognition that law is necessary (1) Recognition that law is necessary for an orderly societyfor an orderly society In order for us to ensure our safety, we In order for us to ensure our safety, we

assume that everyone else will follow assume that everyone else will follow the lawthe law

(2) The applies equally to everyone, (2) The applies equally to everyone, especially to those with power and especially to those with power and authorityauthority

(3) Person’s legal rights will not be (3) Person’s legal rights will not be taken away except in accordance taken away except in accordance with the law (with the law (due process)due process)

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Jurisprudence – Democratic Jurisprudence – Democratic GovernmentGovernment

The government makes all of the law The government makes all of the law and Canadians have the power to and Canadians have the power to votevote

Every 5 years, the Canadian Every 5 years, the Canadian government must hold an election government must hold an election (except in times of war or national (except in times of war or national emergency) but if the party in power emergency) but if the party in power is a minority elections can be held is a minority elections can be held more frequentlymore frequently

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Jurisprudence – Democratic Jurisprudence – Democratic GovernmentGovernment

Our next federal election is October Our next federal election is October 1414thth

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Jurisprudence – Democratic Jurisprudence – Democratic GovernmentGovernment

The The constitutionconstitution is what gives the is what gives the government it’s powergovernment it’s power

Individuals can use courts to Individuals can use courts to challenge government laws that are challenge government laws that are seen as unconstitutional and if the seen as unconstitutional and if the Supreme Court agrees the laws in Supreme Court agrees the laws in question can be struck downquestion can be struck down

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Jurisprudence – Independent Jurisprudence – Independent Justice SystemJustice System

Respect for law – judges (Respect for law – judges (judicial judicial branchbranch) must function independently ) must function independently of all other branches (the other two of all other branches (the other two branches are the branches are the executiveexecutive and the and the legislative branchlegislative branch))

In Canada, judges are appointed for In Canada, judges are appointed for life, not elected (unlike the U.S.) life, not elected (unlike the U.S.) which is seen as an important aspect which is seen as an important aspect of their judicial independenceof their judicial independence