Cotterrell's Argument On The Different Perspectives Of Natural Law

n response to the criticisms of those who are anti-judicial activism, “supporters of judicial activism say such activism through judicial review is necessary because it allows the courts to step in and fill gaps in the law where minorities are not protected because of political pressures and where politicians are afraid to legislate” . This raises the argument that judges and the judiciary play a balanced activist legislative role in such a way that it protects the rights of minorities from legislation or regulation imposed by the government. Within our democratic system, legislators will pay attention to what the majority wants and they will pursue public policies, which favour the majority. This leaves minority interests vulnerable to the legislations and regulations imposed by the government. By playing an active role, the judiciary ensures that the rights of the minorities are protected and that law does not contravene with the Charter of Human Rights and the Constitution of Canada. Through this kind of judicial activism, the courts strike a balance with the legislatures role. This is not to say that the judiciary takes on the role of policymaking and the legislature, but rather that both institutions embrace what is referred to as a “dialogue” where there is a balance between judicial decision-making and legislative-executive decision making . However, according to MacKay, “it is legitimate for the courts to engage in a form of judicial policy making so long as they do

In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen’s rights, under the Canadian Charter of Rights and Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected judges, which goes against Canada’s democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial activism should not be a part of Canada’s judicial process because it gives too much power to the courts and disrupts the democratic process of

PHL 612 Philosophy of Law [Calendar Description]: What is law? What makes something a legal norm? Should

In today’s Canadian society, it is certain that criminal law is to serve and protect and its fundamental purpose is to prevent crime and punish offenders. However, there have been cases where criminal law has punished the offender who turned out to be innocent. A conviction is needed to show that the system is not in disrepute and to keep order and people safe in society. If a criminal cannot be caught then people will look down upon the system in disgrace. In many cases, officers will arrest an individual who fits a certain description that they know will lead to an arrest and conviction. In the case of Guy Paul Morin it shows how the system failed in aiding the innocent who abide to the law. The law is established to protect those who

The foundations of law have been set in the ideas of natural laws that are given to us. There are many different theories on how our laws of nature have brought us to develop the social contracts and government of today’s society. John Locke and Saint Thomas Aquinas’s views of how social contracts are developed from natural and eternal laws are both well seated in the belief of God given rights, but differ in the politics of the governments.

In the article ‘Public Reason and the Disempowerment of Aboriginal People in Canada’, written by Matthew Tomm, the author begins by providing a general perception towards the aboriginal perspective in the political and legal discussions through the use of a brief narrative. The author then transitions this background information into his argument surrounding this injustice. The author’s argument regarding the struggles of aboriginal people in Canada is clearly identified as a two-part statement. Part I features the obstacle of public justifiability, the idea utilized to actually justify the injustice towards the aboriginal people, defined by the author as “a central idea of contemporary political theory, which says that to be legitimate the laws of a democratic state should be justified to all its citizens” (Tomm 294). Part II illustrates the idea of public justifiability being at work in Canadian courts; regardless of their effort to implement the aboriginal perspectives into the legal system, their ambivalence is causing inefficiency and inconsistency. The author discusses the impact of the principle of public reason, the political liberal stance on the matter, the courts approach and handling of the normative dimensions of aboriginal perspectives, and the injustice of legal pluralism in regards to one being considered superior. All these ideas and events occurring within the law contribute to strengthening the author’s argument. In summary, the author’s argument surrounds

I have proposed in these first paragraphs that there are problems with having judges at the head of the legal and moral trajectory of our nation, but surely I am not the first to propose such a thing. The Canadian Charter of Rights and Freedoms addresses this issue by having the threat of a legislature disregarding the Supreme Court. Sections 1 and 33 give parliament just such authority. At the beginning of this essay I made the statement that putting our rights under reasonable limits

Neil Boyd said in this book that in any lawmaking, a law is a power with a political compromise. He further says the law is a prize that various political actors seek within a terrain of social, political, and economic conflict. It is honest that while describing sources of legal philosophy, three backdrops such as struggle, compromise, and councils must consider (Boyd 2015 p. 50).

The Canadian Court systems have been in place for hundreds of years, and have been the places where citizens go to seek justice and safety. Just for a second, imagine that these courts were easy to get to and navigate, and that citizens would feel as if their entire arguments surrounding the law were being used to solve disputes. In any society, there will be some form of law, whether it be simple or complex, and the systems used in the Western World have some fundamental issues and there could certainly be additions for other forms of dispute regulations. The Canadian Legal system has been extremely beneficial for many years since it’s commencement, but Nils Christie’s major criticisms of the Western Legal Systems should be taken into account and fixed to create a more useful system for all Canadian citizens. Christie argues that courts are outside of the public centres so therefore are not accessible to the public, and that once there, the courts are also extremely difficult to navigate and not friendly to those who do not have a profession in law or government. He also argues that people that have disputes have to hire lawyers because without a lawyer, a judge would not regard them highly, and this alternative person uses the legal system to remove a victim from their own conflict. In addition, when a case is brought to courts, the state takes it over and the problem is taken away from the victim, making the crime one that was done against the state. Court systems should

“The oldest profession in the world”; this is how prostitution is often defined or referred to. However, the reality of prostitution in the 21st century is much more complex than it was before. With the emergence of nation-states and democracy, the question of the legal status of prostitution became an issue now more controversial than ever. In Canada, this question resurfaced in the last decade with the Bedford case, which eventually led to a change in laws pertaining to prostitution with Bill-36 in 2014. While the Conservatives supported an abolitionist view on prostitution, their bill was severely criticized by the opposition parties and many groups defending human rights. Thus, a critical question arises: should prostitution be

     In his book on ?The Behavior of Law? Donald Black attempts to describe and explain the conduct of law as a social phenomenon. His theory of law does not consider the purpose, value, impact of law, neither proposes any kind of solutions, guidance or judgment; it plainly ponders on the behavior of law. The author grounds his theory purely on sociology and excludes the psychology of the individual from his assumptions on the behavior of law (Black 7). The theory of law comes to the same outcome as other theories scrutinizing the legal environment, such as deprivation theory or criminal theory; however, the former concentrates on the patterns of behavior of law, not involving the

The Supreme Court of Canada fails to take a consistent and principled approach to criminal procedure cases. Assessing the constitutionality of legislation is an important function of the Supreme Court of Canada. Consequently, consistent and principled approaches are expected and required in the interest of fairness and upholding judicial legitimacy. The judiciary’s role in protecting individual rights from state interference is a core judicial function, particularly in criminal procedure cases. “The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in the criminal law where the vast resources of the state and very often the weight of public opinion are stacked against the

The two areas of study outlined by the readings “The Politics of Law and Jurisprudence” by Christopher Banks and David O’Brien, and “Introduction to The Politics of Law” by David Kairys discusses the ideas of classical theories and contemporary theories of jurisprudence. The main ideas of classical jurisprudence are natural law, positive law and legal realism. These ideas are outlined throughout Bank and O’Brien’s reading. Through Kairys’ reading, the ideas of critical legal studies, critical race theory, feminist legal theory, and queer legal theory are discussed. The study of jurisprudence specifically is the theory of law.

Philosophy allows people to study the nature of people’s beliefs. Throughout history people’s beliefs have differed. At one time people may believe one idea and decades later people may completely disagree with that idea. Not even the ideas of the law are exempt from this occurrence. Since the spoken word, hundreds of philosophers have defined law in different ways. Seeing law in different ways people can come to different conclusions about specific cases. The Fugitive Slave Law was a controversial law in American history. The Fugitive Slave Law allowed slave-owners to capture their slaves who have fled north to free states. In United States v Morris, the emancipators challenged the Fugitive Slave Law in Boston. A group of emancipators helped an escaped slave flee to Canada; the Fugitive Slave Law states helping an escaped slave is in violation of the law. In this case, the jurors let the emancipators free for helping a slave escape slavery to Canada. Philosophy gives us the tools to analyze the legality of the juror 's actions and answer the question "Did the jurors in Morris do the right thing?" Natural Law theory, Positivism, Legal Realism, Dworkin’s neo-natural law theory, and Butler’s critical law theory all provide different outlooks to answering this question. All of these philopshers have differing beliefs of the role of morality and law. However, these philosophies all conclude in the answer the jurors in Morris, in fact, did the right thing.

It has been said that prostitution is the oldest profession in the world. Where there is money there will be sex and where there is sex there will be prostitution. From Ancient Greece to the streets of North America, prostitution is woven into the fabric of most societies, past and present. Although controversial, prostitution and the laws that govern this line of work in Canada have recently made headlines across the country. Canada (Attorney General) v Bedford, 2013 SCC72, [2013] 3 S.C.R 1101 has taken the world’s oldest profession from out of the shadows and into the Supreme Court of Canada, creating a stir among legislators and citizens alike. When examining this particular case and the potential impact it will have on prostitution laws in Canada, one must take into account the previous court cases that have set the stage for Canada (Attorney General) v Bedford, 2013, the criticisms and support regarding the Supreme Court of Canada’s decision and how the Canadian Government has chosen to respond.