https://kumu.tru.ca/api.php?action=feedcontributions&user=Kruhlakj13&feedformat=atomKumu Wiki - TRU - User contributions [en]2024-03-28T20:14:42ZUser contributionsMediaWiki 1.35.8https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=5182Course:Law3020/2014WT1/Group L/System Of Rights2014-03-28T03:56:20Z<p>Kruhlakj13: /* Application to Geffen v Goodman Estate */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent [[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]] that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions. These future decisions have to be coherent and appropriate reflect and expand on the preceding decisions. This is what constrains judicial decision making and makes it clear that judicial discretion is not unlimited, but must accord both with precedent and with principles.<ref>''Ibid'' at 250.</ref><br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. Principles could be considered analogous to morals in a natural law analysis, they compose the substance of the law and act as a guiding principal in judicial decision making. <br /><br />
<br />
In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br /><br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=5181Course:Law3020/2014WT1/Group L/System Of Rights2014-03-28T03:54:14Z<p>Kruhlakj13: /* Application to Geffen v Goodman Estate */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent [[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]] that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions. These future decisions have to be coherent and appropriate reflect and expand on the preceding decisions. This is what constrains judicial decision making and makes it clear that judicial discretion is not unlimited, but must accord both with precedent and with principles.<ref>''Ibid'' at 250.</ref><br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br /><br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5167Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:44:16Z<p>Kruhlakj13: /* Must be Made by a Valid Lawmaker */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /><br />
<br />
Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.<br /><br />
<br />
While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5166Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:44:03Z<p>Kruhlakj13: /* Must be Made by a Valid Lawmaker */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /><br />
Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.<br /><br />
<br />
While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5165Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:43:49Z<p>Kruhlakj13: /* Must be Made by a Valid Lawmaker */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /><br />
<br /> Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.<br /><br />
<br />
While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5159Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:38:28Z<p>Kruhlakj13: /* Law Must be Promulgated */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /><br />
<br /><br />
Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.<br /><br />
<br />
While the promulgation may be an issue to Aquinas in this case, positivist theorists, like John Austin, would assert that common law is no law at all regardless of being promulgated. Judges are mere actors of the state and should the sovereign disagree with judicial decisions, their decision will be dismissed.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5153Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:32:04Z<p>Kruhlakj13: /* Must be Made by a Valid Lawmaker */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br /><br />
<br /><br />
Conversely, theorist, Lon Fuller, gives judges authority to do more than simply interpret the law. When faced with "bad laws" it is the judges responsibility to change these laws to protect inner morality. Similarly, separation theorist, H.L.A. Heart, also expands the power of the courts in suggesting that judges are to appeal to law governed practices to remedy difficult situations that come before it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=5152Course:Law3020/2014WT1/Group L/Natural Law2014-03-28T03:26:21Z<p>Kruhlakj13: /* The Common Good */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts. <br />
<br /><br />
<br />
Theorist Lon Fuller, would agree that a law must be grounded in morality and further the common good. However, Fuller would likely expand on this requirement and suggest a law must properly guide moral conduct and be socially accepted to truly function as a moral law.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=4847Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-27T17:49:27Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminist theories of law break into different bundles of views rather than a single school of thought such as legal realism. This is based on the belief that women have many different social realities and experience things differently. Feminism concentrates on concrete and real experiences had by women in society, it is a practical theory rather one that is strictly philosophical. [[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250x300px]]However, even though the theories differ in various ways, they all extend from two main premises:<br /><br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminist legal theory rejects “meta theories” and asserts they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine MacKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law along with possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such a dynamic is created by social barriers to women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside; being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> A solution for liberal feminists is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as motherhood, must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality.<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of the appropriate roles of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deeply rooted into our society, permeating in all aspect of our lives, that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers;<ref>''Ibid'' at 142.</ref> they argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is actually from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where their responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit, they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized, and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern (French) Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express that the approach that a single answers exists to be a typically male approach and, according to Postmodern Feminism, there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Whereas women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this difference in socialization as a bad thing. Women do not need to assimilate with the male system; rather, society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mackinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up, and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as 'cloak' must be remembered and applied to such a critical analysis in order to break through the system of male domination.<br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mackinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity veils the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court then it can no longer be said to be unequal when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mackinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. Although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is engrained in our entire legal and social system, self sustained, and able to perpetuate through all aspects of the legal system.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Law_As_Efficiency&diff=4846Course:Law3020/2014WT1/Group L/Law As Efficiency2014-03-27T17:48:06Z<p>Kruhlakj13: /* Law as Efficiency: Susan Dimock */</p>
<hr />
<div>== Law as Efficiency: Susan Dimock ==<br />
When assessing the relationship between law and economics, good law is efficient law.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 116.</ref> The definition of efficiency in this analysis is based on wealth maximization. As articulated by Richard Posner, efficiency exists when wealth is maximized.<ref>''Ibid'' at 117.</ref> Wealth is not limited to monetary gains, but any satisfactions that can be measured is recognized as wealth.<ref>''Ibid'' at 117.</ref> This principle requires that social wealth be maximized and resources are appropriately allocated to those who value it most.<ref>''Ibid'' at 117.</ref> Efficient legal rules ensure that this allocation is done in an efficient manner.<ref>''Ibid'' at 117.</ref> <br />
<br />
=== Economic Foundations of Wealth-Maximization ===<br />
Economist, Vilfred Pareto, established Pareto-superiority to measure efficiency.<ref>''Ibid'' at 118.</ref> Pareto-superiority assumes that all individuals are rational actors and they will only choose situations in which all parties are better off, thus maximizing the overall social wealth. Pareto-optimal addresses a state in which no more moves can be made to increase wealth without depriving others of their wealth.<ref>''Ibid'' at 118.</ref><br />
[[File:Vilfredo Pareto.jpg|thumbnail|Vilfred Pareto]]<br />
<br />
Yet, Pareto-superiority is not a realistic state because it fails to take into account negative impacts to third parties, thus economists developed an alternate measure of efficiency, the Kaldor-Hicks test.<ref>''Ibid'' at 119.</ref> This test allows for transactions to be made that result in third a party being worse off, only if the benefiting parties can compensate the loser, so that no one is worse off.<ref>''Ibid'' at 119</ref><br />
<br />
=== Equity and Economic Principles ===<br />
With these principles in mind economists begin their analysis of the market under the assumption that market transactions are voluntary and that people are “rational agents.”<ref>''Ibid'' at 120 and 121</ref> This assumption is unrealistic, however it does create a void that equitable principles, like the presumption of undue influence has to potential to fill. Like in Geffen v Goodman Estates, when a party is under the influence of another, their transactional decisions may not be voluntary. By the recognizing situations where undue influence has the potential to occur, the courts can return individuals to their former state if they were part of an involuntary transaction. Equity plays a large role in creating a more voluntary market, thus maximizing wealth and allowing for the economic theories to be more applicable. <br />
<br />
Equity complements the overall economic theory, allowing it to truly function by testing transactional relationships against the efficiency model. In situations where humans are not acting as rational or voluntary agents we are unable to determine the value of the exchange. Equity allows the judge to remedy these situations with equitable tools like the presumption of undue influence.<br />
<br />
=== Role of Legislators and Judges ===<br />
According to economists, legislators fail in the pursuit of economic efficiency. Their focus is self-interest and they redistributive rather than maximize wealth.<ref>''Ibid'' at 121.</ref><br />
<br />
In contrast, judges have the ability to properly facilitate efficiency.<ref>''Ibid'' at 121.</ref> Inefficient cases are the ones judges are most likely to hear, thus they have the opportunity to promote efficiency.<ref>''Ibid'' at 122.</ref> Posner asserts that judges can make efficient decisions that serve “the broad-based social demand for efficient rules governing safety, property and transaction.”<ref>''Ibid'' at 122.</ref><br />
<br />
We certainly see this in play in Geffen v Goodman Estates, the judge re-confirms the equitable principle of undue influence and its presumption, which is protecting the integrity of transactions. Although it was found that the appellant was not a victim of undue influence, assessing situations when it can arise ensures that issues before the court are properly addressed and those who have suffered an unwarranted loss are remedied. This assessment furthers the purpose of judges as economic decision makers who can develop and enforce efficient rules.<br />
<br />
=== The Normality of Maximizing Wealth ===<br />
In assessing the relationship between law and economics, there is criticism as to whether the two should interact. Posner suggests, “If judges were to pursue wealth-maximization as their goal, then they would produce a morally attractive mix of rights, virtues, productive incentives and altruism.”<ref>''Ibid'' at 135.</ref> This seems logical. Conversely, Ronald Dworkin asserts that we should focus on redistribution as the means of increasing social wealth.<ref>''Ibid'' at 135.</ref> However, if an individual does not pay for a good we have no way of knowing what value the good has to the individual and thus are unable to confirm if there has been an increase in social wealth.<ref>''Ibid'' at 136.</ref><br />
<br />
That being said, assuming that individuals are always voluntarily engaging in a sale or purchase is naïve. Again equity appears, allowing for this theory to accurately exist by ensuring those who have been victim of a transaction they didn’t wish to complete will be properly remedied. This will preserve the concept of wealth-maximization and the idea that resources “be distributed according to their most highly valued use.”<ref>''Ibid'' at 136.</ref><br />
<br />
== Additional Application to Geffen v Goodman Estates ==<br />
In the Geffen v Goodman Estates, there was potential for the brothers to unduly influence Tzina to gift land to them. If this was the case, the value of the transaction would be unknown. The presumption of undue influence preserves the exchange of value. Assessing the relationship is important to the functioning of the efficiency model - it allows judges to remedy situations in which involuntary transactions have occurred.<br />
<br />
Dimock suggests that contracts exist to promote efficient exchanges - this is only accurate if the participants make a voluntary and influence free exchange. If a contract is entered into when an individual is victim of undue influence, that party will likely be suffering a loss and allowing for this type of influence to exist will decrease market efficiency by harming the integrity of the transactional process. By having a presumption of influence that arises in certain situations will ensure that individuals privy to a transaction ensure the process is voluntary and fair to maximize wealth and efficiency.<br />
<br />
Dimock might criticize the presumption of undue influence for raising transaction costs and thus lessening efficiency. To guard against presumption on may need to consult a lawyer or agree to a less than ideal bargain because of their position.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=4845Course:Law3020/2014WT1/Group L/System Of Rights2014-03-27T17:46:12Z<p>Kruhlakj13: /* Ronald Dworkin: Law as a System of Rights */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent [[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]] that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions. These future decisions have to be coherent and appropriate reflect and expand on the preceding decisions. This is what constrains judicial decision making and makes it clear that judicial discretion is not unlimited, but must accord both with precedent and with principles.<ref>''Ibid'' at 250.</ref><br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=4096Course:Law3020/2014WT1/Group L/Natural Law2014-03-26T17:18:18Z<p>Kruhlakj13: /* Must be Made by a Valid Lawmaker */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
However, given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning that there is no restriction on the judges to make decisions on it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Positivism&diff=4094Course:Law3020/2014WT1/Group L/Positivism2014-03-26T17:16:36Z<p>Kruhlakj13: /* Command Theory of Law */</p>
<hr />
<div>== Legal Positivism: John Austin ==<br />
<br />
Positive law is a breakaway from the approach of natural law. For a positive law theorist, laws are created without a view toward the moral implications that the laws produce. According to John Austin, a leading positivist thinker, “lawmakers may strive for congruence with morality, but – “law itself is the standard of justice.”” Additionally, positivists believe that there is no conceptual requirement that law must meet some kind of moral end, although they do acknowledge there is the possibility that some laws may be unjust or immoral. However, if those laws are implemented in the correct fashion they are still a valid law. This is known as the separation thesis, which has three main features:<br /><br />
<br />
:First, it allows us to make sense of the common observation that we are in fact familiar with immoral and unjust laws. Second, by separating law and morality it allows us to use morality as an independent standard against which we can assess the law…Morality and justice then provide an independent ideal against which we can just the law itself. Finally, the positivist position provides what seems to be a better description of the position of the average citizen facing an unjust or immoral legal requirement.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.</ref><br /><br />
[[File:John Austin.jpg|thumbnail|John Austin|frame]]<br />
<br />
== Command Theory of Law ==<br />
<br />
John Austin’s theory is known as “law as command”, a theory that is primarily concerned with relationships of power that are found in the world. In general, Austin believes that laws are defined in terms of commands issued by superiors to subordinates, which are backed by the threat of sanction should the subordinates fail to follow the laws, “A law… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”<ref>''Ibid'' at 37.</ref> In order to delineate which rules need to be followed as law, Austin set out three directives that govern human behaviour:<br />
<br /><br />
<br />
<br />
# '''God’s Law''': purview of religion (some revealed, some not) for those that are not humans use the index of utility to determine as best they can what God’s commands are. God wants us to be happy (utilitarianism) in general, just pick what you think would make society the happiest. <br />
# '''Positive Morality''': includes rules of clubs/voluntary associations, etiquette, common opinion on matters of right and wrong, international law and constitutional law. These are human made rules governing human conduct that lack one or more of the essential conditions of law<br />
# '''Positive Law''': laws set by humans to other humans. Set by the boss of an independent political community to civilians in the community. Commands backed by threat of sanctions. Impose a duty of compliance on the civilians.<br />
<br />
<br /><br />
According to Austin, the only two directives that meet the requirements for an actual law are those made by God and the positive laws. God as a sovereign is essentially a given in Austin’s theory, however to determine whether a human is a sovereign, thus capable of issuing commands to subordinates, he must be recognized. The sovereign (either individual or aggregate body) must be a determinate and common superior who the bulk of society are in the habit of obedience or submission. Austin summarizes his thoughts on superiority in the following, “whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior.”<ref>''Ibid'' at 44.</ref><br /><br />
<br />
Positive morality rules are not laws because there are no punishments if one doesn’t choose to follow the rules. A command is distinguished from a rule in that one is liable to endure an evil if they do not comply with a command, therefore the subordinate is duty bound to obey it. Any time there is a reward offered for some service there is no law, as Austin declares that one is not obliged to follow said rule, they are simply induced into competing the action. There is no threat of an evil coming your way should one fail to complete the task.<br /><br />
<br />
Laws must also be permanent and specific in order to be valid. Should there be a non-specific regulation or sanction, Austin would find that to be a rule as opposed to a law. The lawgiver must determine a class or description of acts that are prohibited generally and indefinitely, should they be broken there must be general and specific punishment.<br /><br />
<br />
According to positivists, when a judge attempts to make a law they are simply applying the limited power that was delegated to them by their superiors. They are acting as “ministers” of the superiors by issuing specific commands as opposed to generalized rules which apply to an entire class. The superiors are able to reverse the rules made by judges. When a judge applies a customary law, they are issuing a tacit command (signified by conduct as opposed to express commands which are spoken or written).<ref>''Ibid'' at 48.</ref> These customary rules which are turned into legal rules by judges become tacit commands that are permitted by the sovereign legislature, “the state which is able to abolish, permits its ministers (judges) to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”<ref>''Ibid'' at 48.</ref><br />
<br />
== Application to Geffen v. Goodman Estates ==<br />
<br />
Judge made law (common law) is actually no law at all, and can be easily overruled by legislation. However, as long as the sovereign accepts the common law - it will continue to act like law. While the judges in the case of ''Geffen v Goodman Estates'' are not trying to create new common law, Austin would likely reject the presumption of undue influence as valid law because it lacks his three requirements as discussed above.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Positivism&diff=4093Course:Law3020/2014WT1/Group L/Positivism2014-03-26T17:15:50Z<p>Kruhlakj13: /* Command Theory of Law */</p>
<hr />
<div>== Legal Positivism: John Austin ==<br />
<br />
Positive law is a breakaway from the approach of natural law. For a positive law theorist, laws are created without a view toward the moral implications that the laws produce. According to John Austin, a leading positivist thinker, “lawmakers may strive for congruence with morality, but – “law itself is the standard of justice.”” Additionally, positivists believe that there is no conceptual requirement that law must meet some kind of moral end, although they do acknowledge there is the possibility that some laws may be unjust or immoral. However, if those laws are implemented in the correct fashion they are still a valid law. This is known as the separation thesis, which has three main features:<br /><br />
<br />
:First, it allows us to make sense of the common observation that we are in fact familiar with immoral and unjust laws. Second, by separating law and morality it allows us to use morality as an independent standard against which we can assess the law…Morality and justice then provide an independent ideal against which we can just the law itself. Finally, the positivist position provides what seems to be a better description of the position of the average citizen facing an unjust or immoral legal requirement.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.</ref><br /><br />
[[File:John Austin.jpg|thumbnail|John Austin|frame]]<br />
<br />
== Command Theory of Law ==<br />
<br />
John Austin’s theory is known as “law as command”, a theory that is primarily concerned with relationships of power that are found in the world. In general, Austin believes that laws are defined in terms of commands issued by superiors to subordinates, which are backed by the threat of sanction should the subordinates fail to follow the laws, “A law… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”<ref>''Ibid'' at 37.</ref> In order to delineate which rules need to be followed as law, Austin set out three directives that govern human behaviour:<br />
<br /><br />
<br />
<br />
# God’s Law: purview of religion (some revealed, some not) for those that are not humans use the index of utility to determine as best they can what God’s commands are. God wants us to be happy (utilitarianism) in general, just pick what you think would make society the happiest. <br />
# Positive Morality: includes rules of clubs/voluntary associations, etiquette, common opinion on matters of right and wrong, international law and constitutional law. These are human made rules governing human conduct that lack one or more of the essential conditions of law<br />
# Positive Law: laws set by humans to other humans. Set by the boss of an independent political community to civilians in the community. Commands backed by threat of sanctions. Impose a duty of compliance on the civilians.<br />
<br />
<br /><br />
According to Austin, the only two directives that meet the requirements for an actual law are those made by God and the positive laws. God as a sovereign is essentially a given in Austin’s theory, however to determine whether a human is a sovereign, thus capable of issuing commands to subordinates, he must be recognized. The sovereign (either individual or aggregate body) must be a determinate and common superior who the bulk of society are in the habit of obedience or submission. Austin summarizes his thoughts on superiority in the following, “whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior.”<ref>''Ibid'' at 44.</ref><br /><br />
<br />
Positive morality rules are not laws because there are no punishments if one doesn’t choose to follow the rules. A command is distinguished from a rule in that one is liable to endure an evil if they do not comply with a command, therefore the subordinate is duty bound to obey it. Any time there is a reward offered for some service there is no law, as Austin declares that one is not obliged to follow said rule, they are simply induced into competing the action. There is no threat of an evil coming your way should one fail to complete the task.<br /><br />
<br />
Laws must also be permanent and specific in order to be valid. Should there be a non-specific regulation or sanction, Austin would find that to be a rule as opposed to a law. The lawgiver must determine a class or description of acts that are prohibited generally and indefinitely, should they be broken there must be general and specific punishment.<br /><br />
<br />
According to positivists, when a judge attempts to make a law they are simply applying the limited power that was delegated to them by their superiors. They are acting as “ministers” of the superiors by issuing specific commands as opposed to generalized rules which apply to an entire class. The superiors are able to reverse the rules made by judges. When a judge applies a customary law, they are issuing a tacit command (signified by conduct as opposed to express commands which are spoken or written).<ref>''Ibid'' at 48.</ref> These customary rules which are turned into legal rules by judges become tacit commands that are permitted by the sovereign legislature, “the state which is able to abolish, permits its ministers (judges) to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”<ref>''Ibid'' at 48.</ref><br />
<br />
== Application to Geffen v. Goodman Estates ==<br />
<br />
Judge made law (common law) is actually no law at all, and can be easily overruled by legislation. However, as long as the sovereign accepts the common law - it will continue to act like law. While the judges in the case of ''Geffen v Goodman Estates'' are not trying to create new common law, Austin would likely reject the presumption of undue influence as valid law because it lacks his three requirements as discussed above.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=4092Course:Law3020/2014WT1/Group L/Natural Law2014-03-26T17:13:10Z<p>Kruhlakj13: /* St. Thomas Aquinas Theory on Natural Law */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rationale and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
Given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning there is no reason not to follow it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=4091Course:Law3020/2014WT1/Group L/Natural Law2014-03-26T17:12:22Z<p>Kruhlakj13: /* Traditional Natural Law */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into society.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rational and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
Given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning there is no reason not to follow it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=4090Course:Law3020/2014WT1/Group L2014-03-26T17:11:33Z<p>Kruhlakj13: /* The Presumption of Undue influence */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue influence properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on testimony by Mr. Pearce and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address the presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare. Furthermore, the court found that Tzina had received independent legal advice, since she had met with her lawyer without the presence of her brothers.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, ''Allcard v Skinner'', (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=4089Course:Law3020/2014WT1/Group L2014-03-26T17:09:32Z<p>Kruhlakj13: /* SCC Decision */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue influence properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on testimony by Mr. Pearce and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address the presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare. Furthermore, the court found that Tzina had received independent legal advice, since she had met with her lawyer without the presence of her brothers.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=4088Course:Law3020/2014WT1/Group L2014-03-26T17:08:40Z<p>Kruhlakj13: /* Analysis */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue influence properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on testimony by Mr. Pearce and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address the presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=4087Course:Law3020/2014WT1/Group L2014-03-26T17:06:30Z<p>Kruhlakj13: /* Analysis */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue influence properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on testimony by Mr. Pearce and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=4086Course:Law3020/2014WT1/Group L2014-03-26T17:05:55Z<p>Kruhlakj13: /* Issues */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue influence properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on Mr. Pearce testimony and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=3521Course:Law3020/2014WT1/Group L2014-03-25T18:15:37Z<p>Kruhlakj13: </p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> ==<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue hardship properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on Mr. Pearce testimony and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L&diff=3519Course:Law3020/2014WT1/Group L2014-03-25T18:15:20Z<p>Kruhlakj13: /* Geffen v Goodman EstatesGeffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53. */</p>
<hr />
<div>== Geffen v Goodman Estates<ref>''Geffen v Goodman Estate, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53.</ref> == [[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
=== Case Summary ===<br />
==== Facts ====<br />
<br />
Tzina Goodman, a sufferer of mental illness and now deceased, had inherited from her mother the family home and a life interest in her mother’s residual estate. Upon death, this interest was to pass to Tzina’s children. Under her mothers will, Tzina’s brothers each received bequests of $1000. Prior to the creation of this will, the mother had initially given Tzina a life estate. The estate was to be divided among the mother’s grandchildren equally, upon Tzina’s death.<br />
[[File:Court of Chancery edited.jpg|Court of Chancery|frame|250x300px]]<br />
Due to Tzina's history with mental illness, the brothers were concerned that she would sell the family home and be left with nothing. Tzina and her brothers sought legal advice, however they came to no collective agreement on how to remedy the situation and their relationship fell apart.<br />
<br />
Tzina continued to consult with the lawyer, Mr. Pearce, who advised her to put the family home into a trust where Tzina would have a life estate in the home, the trustees would sell the home upon Tzina’s request if it was in her best interest. The trust stipulated that upon Tzina’s death the trust property would be divided equally among her mother’s surviving grandchildren.<br />
<br />
Tzina agreed to these terms and Mr. Pearce drafted the trust agreement in which Tzina’s two brothers and one nephew were the trustees.<br />
<br />
Tzina died with her last will and testament leaving the entire estate to her children.<br />
<br />
==== Issues ====<br />
Was presumption of undue hardship properly applied by the Alberta Court of Appeal?<br />
<br />
==== Analysis ====<br />
At the trial level, the plaintiff (Stacy - Tzina’s son) claimed Tzina entered trust agreement as a result of undue influence by the defendants (Sam, Will & Ted - Tzina’s brother and nephew) and other brother Jack. Based on Mr. Pearce testimony and other witnesses it was found brothers did not influence her to signing the agreement. The trial judge based this on the fact there was minimal contact between the brothers and Tzina and she did not rely on them in making the decision.<br />
<br />
At the Alberta Court of Appeal respondents (Stacy) claimed that the trial court failed to recognize and address presumption of undue influence. The Court of Appeal agreed and determined the first step for the presumption of undue influence was triggered, because the nature of the relationship was one in which dominance or influence could be exerted over one party by the other. The Court of Appeal determined the nature of the transaction was that of a gift, and all that was needed for the presumption to stand was the potential for dominance in the relationship. Also noted was that the life estate put her at a disadvantage. The appellants failed to rebut this presumption and the Court ruled in favour of the respondent.<br />
<br />
==== SCC Decision ====<br />
The Supreme Court of Canada stated that the trial court erred in failing to look to the nature of the relationship to determine if it gave rise to the presumption of undue influence. They concluded the nature of the transaction was that of a gift, and therefore the presumption of undue influence stands.<br />
<br />
However, contrary to the Court of Appeal, it was found that the appellants were successful in rebutting the presumption on the basis there was little contact between the brother and sister during the relevant time, Tzina was not relying on her brothers to advise her and the prime motivation of the brothers was their sisters welfare.<br />
<br />
The appeal was allowed.<br />
<br />
==== Ratio ====<br />
'''Inquiry for Undue Influence'''<br /><br />
<br />
'''Step One: The Nature of the Relationship'''<ref>''Ibid'' at para 40.</ref><br /><br />
Must assess the relationship if there is a potential for domination or dependency in the relationship.<br /><br />
<br />
'''Step Two: The Nature of the Transaction'''<ref>''Ibid'' at para 43.</ref><br /><br />
Commercial relationships (where consideration is at play) must show that the contract was unfair - simply giving more than getting does not suffice. If an individual privy to the transaction is unduly disadvantaged or unduly benefits, this will be evidence towards the existence of undue influence. When dealing with gifts or bequests situations (no consideration), establishing step one is all that is required for the presumption to exist.<br />
<br />
== The Presumption of Undue influence ==<br />
The presumption of undue influence is an equitable doctrine developed in the case, Allcard v Skinner, (1887) 36 Ch D 145. The courts have been reluctant to define undue influence, but generally if there is unfair and improper conduct and a degree of personal advantage obtained by the wrongdoer then a presumption of undue influence may arise. The reason for retaining the ability to set aside such contracts is that consent is vitiated and and to prevent the abuse of influence to the detriment of the plaintiff. In order to trigger the presumption of undue influence there must be a relationship which has the potential for domination or dependency.<ref>Richard Oppong, “Contracts 3030: Undue Influence” (Lecture Delivered at the Faculty, Thompson Rivers University, 27 January 2014), [Unpublished]. </ref><br />
<br />
== Theories ==<br />
[[Course:Law3020/2014WT1/Group_L/Natural_Law]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Positivism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Separation_Thesis]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/System_Of_Rights]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Liberty-Paternalism]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Law_As_Efficiency]]<br />
<br />
[[Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence]]<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=3514Course:Law3020/2014WT1/Group L/System Of Rights2014-03-25T18:14:25Z<p>Kruhlakj13: /* Ronald Dworkin: Law as a System of Rights */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent [[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]] that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions.<br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=3512Course:Law3020/2014WT1/Group L/System Of Rights2014-03-25T18:14:00Z<p>Kruhlakj13: /* Ronald Dworkin: Law as a System of Rights */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules,[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]] then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions.<br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3509Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:13:00Z<p>Kruhlakj13: /* Feminism: Introduction */</p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. [[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250x300px]]However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3508Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:12:34Z<p>Kruhlakj13: /* Feminism: Introduction */</p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a [[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250x300px]]practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3507Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:12:14Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a [[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250x300px]]practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3503Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:11:49Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250x300px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3496Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:10:44Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|framed|Catharine Mackinnon]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3494Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:10:12Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|40px40px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3492Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:09:49Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|100px150px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3490Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:09:12Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3486Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:09:00Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|150px200px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3485Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:08:41Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|frame|250px300px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3482Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:08:18Z<p>Kruhlakj13: /* Feminism: Introduction */</p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon|250px300px]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Feminist_Jurisprudence&diff=3478Course:Law3020/2014WT1/Group L/Feminist Jurisprudence2014-03-25T18:07:52Z<p>Kruhlakj13: </p>
<hr />
<div>== Feminism: Introduction ==<br />
Feminism of law breaks into different bundles of views rather than single school of thought which is similar to legal realism. This is based on the belief that women have many different social realities and experience different things. Feminism concentrates on concrete and real experience had by women in society, it is a practical theory rather one that is strictly philosophical. However, even though the theories differ in various ways they all extend from two main premises:<br /><br />
[[File:MacKinnon.8May.CambridgeMA.png|thumbnail|Catharine Mackinnon]]<br />
<br />
# The world we know of today has been structured by patriarchy and the dominance of men over women in our society<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 140.</ref><br />
#Patriarchy is bad for women, it is morally unjust, and ought to be eliminated <ref>''Ibid'' at 140.</ref><br /><br />
<br />
Feminist theory expresses that laws are often sustained by the strong patriarchy present in society and therefore have a skeptical view of the law, “challenging the central tenets of traditional jurisprudence.” Feminism rejects “meta theories” and says they are fictions created by patriarchy and that they feed evil needs.<br />
<br />
== Patricia Smith: Law as a Patriarchal Institution ==<br />
=== Feminist Jurisprudence and Natural Law ===<br />
Feminist jurisprudence is described by Catharine McKinnon as “the analysis of law from the perspective of all women."<ref>''Ibid'' at 140.</ref> The main objective of feminism is to analyze the legal system and its effect through the experiences of women. However its important to understand that this is not a definition, as it is false to think women have one perspective. The premise which is agreed upon is that society is molded from patriarchy and that it is bad for women; so therefore the best way to define feminist jurisprudence is “the analysis and critique of law as a patriarchal institution."<ref>''Ibid'' at 141.</ref><br />
<br />
== Feminist Theories ==<br />
Feminism has a diverse approach to understanding society and law, and possible solutions. The main theories of feminism are as follows: Liberal feminism, Radical feminism, Marxist feminism, Postmodern feminism and Relational Feminism<br />
<br />
=== Liberal Feminism ===<br />
The central view of liberal feminism is that women are kept as subordinates to men in society and that such dynamic is created by social barriers that bar women socially, politically, economically.<ref>''Ibid'' at 141.</ref> Liberal feminism explains that if women were to be treated equally then social barriers would subside. Being treated equally would pertain to every situation of life. Law should be “gender blind” and there should be no restraints or assistance on the basis of sex.<ref>''Ibid'' at 142.</ref> Solution for liberal feminism is the removal of all social barriers, where equal opportunity is held for both men and women in the political, economic and social spheres. Modern liberal feminism foresees the establishment of equal opportunity to involve elimination of discrimination and stereotypes. A reorganization of gender spheres where realistic opportunities are made public for women is necessary. Responsibilities, such as, motherhood must be acknowledged as worthy in society to be able to fall within the same sphere of male responsibilities and establish equality<br />
<br />
=== Radical Feminism ===<br />
Radical feminism focuses mostly on gender roles as social construct, a fiction made by men in the patriarchal system.<ref>''Ibid'' at 142.</ref> Patriarchy is described as a tool by which men dominate women, by creating social constructs of what is the appropriate role of male and females in society.<ref>''Ibid'' at 142.</ref> The most dominant idea is that patriarchy is so deep rooted into our society, permeating in all aspect of our lives that it must be taken apart. The general roles of men and women are said to be a fiction created by patriarchs, which are ingrained in youth through socialization. The only solution would be to reconstruct the idea of gender in order to create equality.<ref>''Ibid'' at 142.</ref> Some radical theorist such as Adrienne Rich and Mary O’Brian have concentrated on the role of women as mothers and child bearers.<ref>''Ibid'' at 142.</ref> They argue that women should be either relieved of this responsibility or to have sole control over it.<ref>''Ibid'' at 142.</ref><br />
<br />
=== Marxist Feminism ===<br />
Marxist feminism doesn't believe construction of gender is the main issue and that oppression of women is from the effects of Capitalism.<ref>''Ibid'' at 143.</ref> Capitalism created concepts of private property and subsequently divided the world into the public and private spheres. Women were then put into the non-economic private sphere where there responsibilities became to bear children and take care of the home.<ref>''Ibid'' at 143.</ref> This devalued female labour in the market and their labour was seen as having no value for the advancement of society.<ref>''Ibid'' at 143.</ref> Since women were seen as being unable to create a profit they were seen to be useless and of no economic benefit. The solution presented by the Marxist feminist is to change the economic system, uproot the system of capitalism through revolution, so that women will no longer be economically dependent, marginalized and exploited.<ref>''Ibid'' at 143.</ref><br />
<br />
=== Postmodern French Feminism ===<br />
Postmodern Feminism rejects the idea of a one step solution to the problem of patriarchy and suppression of women.<ref>''Ibid'' at 143.</ref> They express this to be male approach that a single answers exists and there cannot exist a single strategy. The focus should rather be on the concrete, lived experience of women’s lives.<ref>''Ibid'' at 143.</ref> This theory views the juxtaposition of women as “the other” as a positive distinction.<ref>''Ibid'' at 144.</ref> It is not to be thought of as being marginalized or objectified but rather women can be celebrated as being the other while also join the male value system.<ref>''Ibid'' at 144.</ref><br />
<br />
=== Relational Feminism ===<br />
Rational Feminism explains that women and men go through different moral development by socialization forces.<ref>''Ibid'' at 144.</ref> Males are socialized under the idea of ethics and justice, where principles and rights are concentrated and abstract (144). Where women are socialized under ethics and care, where the focus is on concrete relationships, concern for others and responsibility for others.<ref>''Ibid'' at 144.</ref> However, relational feminism does not see this as a bad thing. Women do not need to assimilate with the male system, rather society must see the value in the female perspective and legitimize it as valued. Therefore, institutions must change to reflect and accommodate the values and virtues of women, such as sympathy, patience and concern.<ref>''Ibid'' at 144.</ref><br />
<br />
== Law as a Male Power: Catherine Mackinnon == <br />
Catherine Mackinnon, a radical feminist, states that law itself creates the system where power is enforced and implemented. Mckinnon argues that law is the hammer of oppression while also acting as source for neutrality and equality. Her famous metaphor for this relationship is that law is the “site and cloak of force.” Law is the force which legitimizes the system of oppression by being masked as neutral and equal when in reality it stems from the same patriarchal system which has perpetuated subordination. The law immunizes the male point of view in concepts such as the rule of law, precedent, the reasonable person and norms of judicial restraints and prohibits a challenge to these concepts, by cloaking them as sources of equality.<br /><br />
<br />
Mackinnon argues positive laws which establish legal equity for women are not the solution to end oppression. It is the entire social and legal system which perpetuates the inequality and the only way to fight against the cloak of the law is for women to demand actual equality. Women should own their reality and not be ashamed of the work that is done in the private sphere. Women must stand up, speak up and fight against degradation of women in society. Furthermore, women must be cognizant that male dominance is often embodied in individual rights. Activities which degrade women in society are hidden under the concept of individual rights; so that it becomes unnatural and frowned upon to question them. For example the sexualization of women in pornography or music videos is often protected under the concept of freedom of expression and speech. Violence in the home is hidden under the concept of freedom to privacy. MacKinnon asserts these societal concepts must be recognized and confronted. The question which needs to be asked on a case by case analysis is “does a practice participate in the subordination of women or not?” Concepts such as the objectivity and neutrality of the law as cloak must be remembered and applied to such a critical analysis in order to break through the system of male domination. <br />
<br />
== Application to Geffen v Goodman Estates == <br />
Catherine Mckinnon would point to equity as an example of a system of laws which are cloaked by the presumption of fairness and equality. She might assert equity as being a legal device which continues to maintain and perpetuate male dominance and subordination of women. Equity vails the system of social and legal dominance as something that is natural and fair. It makes it hard for subordinated members of society to stand up and question the legal system because once the law or particular case is vetted through the system of equitable court than it can no longer said to be uneual when in reality and its operation it is.<br /><br />
<br />
In regards to the presumption of undue influence at the case at hand, Mckinnon and along with other feminist theorists would highlight that minority groups, such as women, will usually experience undue influence from male counterparts in their lives. And although the recognition of this force in private relationship seems be positive recognition of women as oppressed, its application in reality is perpetuating the system of male dominance. By putting the onus of proof on the party seeking protection the legal principle sets up a further blockade for the disadvantaged. <br /><br />
<br />
Furthermore, the fact that the presumption of undue influence is often rebutted by presence of independent legal advice demonstrates the failure of the principle to take account of the longstanding system of oppression. Feminist theorist might say that even if a party has sought out legal advice this does not alone erase the pressures of dominance which have been put upon them from the social and legal system. The pressure put onto women and other minorities to assimilate to the system maintained by patriarchy cannot be simply negated by seeking legal advice which is in itself yet another field of male dominance. We saw this play out in Geffen v Goodman Estates, where the presumption of undue influence was quickly rebutted by the fact that Tzina sought legal advice. The court did not take into account the individual circumstance as a mentally ill women who had depended on her male siblings her whole life. It is in such situations where Mackinnon and other feminist theorists argue that male dominance is penetrated in our entire legal and social system, self sustained and able to perpetuate through all aspects of the legal system. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Law_As_Efficiency&diff=3475Course:Law3020/2014WT1/Group L/Law As Efficiency2014-03-25T18:06:25Z<p>Kruhlakj13: /* Law as Efficiency: Susan Dimock */</p>
<hr />
<div>== Law as Efficiency: Susan Dimock ==<br />
When assessing the relationship between law and economics, good law is efficient law. (page 116) The definition of efficiency in this analysis is based on wealth maximization. As articulated by Richard Posner, efficiency exists when wealth is maximized.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 117.</ref> Wealth is not limited to monetary gains, but any satisfactions that can be measured is recognized as wealth.<ref>''Ibid'' at 117.</ref> This principle requires that social wealth is maximized – resources are appropriately allocated to those who value it most.<ref>''Ibid'' at 117.</ref> Efficient legal rules ensure that this allocation is done in an efficient manner.<ref>''Ibid'' at 117.</ref> <br />
<br />
=== Economic Foundations of Wealth-Maximization ===<br />
Economist, Vilfred Pareto, established Pareto-superiority to measure efficiency.<ref>''Ibid'' at 118.</ref> Pareto-superiority assumes that all individuals are rational actors and they will only choose situations in which all parties are better off, thus maximizing the overall social wealth. Pareto-optimal addresses a state in which no more moves can be made to increase wealth without depriving others of their wealth.<ref>''Ibid'' at 118.</ref><br />
[[File:Vilfredo Pareto.jpg|thumbnail|Vilfred Pareto]]<br />
<br />
Yet, Pareto-superiority is not a realistic state because it fails to take into account negative impacts to third parties, thus economists developed an alternate measure of efficiency – the Kaldor-Hicks test.<ref>''Ibid'' at 119.</ref> This test allows for transactions to be made that result in third a party being worse off, only if the benefiting parties can compensate the loser - so that no one is worse off.<ref>''Ibid'' at 119</ref><br />
<br />
=== Equity and Economic Principles ===<br />
With these principles in mind economists begin their analysis of the market under the assumption that market transactions are voluntary and that people are “rational agents.”<ref>''Ibid'' at 120 and 121</ref> This assumption is unrealistic, however it does create a void that equitable principles, like the presumption of undue influence has to potential to fill. Like in Geffen v Goodman Estates, when a party is under the influence of another, their transactional decisions may not be voluntary. By the recognizing situations where undue influence has the potential to occur, the courts can return individuals to their former state if they were part of an involuntary transaction. Equity plays a large role in creating a more voluntary market, thus maximizing wealth and allowing for the economic theories to be more applicable. <br />
<br />
Equity complements the overall economic theory, allowing it to truly function by testing transactional relationships against the efficiency model. In situations where humans are not acting as rational or voluntary agents we are unable to determine the value of the exchange. Equity allows the judge to remedy these situations with equitable tools like the presumption of undue influence.<br />
<br />
=== Role of Legislators and Judges ===<br />
According to economists, legislators fail in the pursuit of economic efficiency. Their focus is self-interest and they redistributive rather than maximize wealth.<ref>''Ibid'' at 121.</ref><br />
<br />
In contrast, judges have the ability to properly facilitate efficiency.<ref>''Ibid'' at 121.</ref> Inefficient cases are the ones judges are most likely to hear, thus they have the opportunity to promote efficiency.<ref>''Ibid'' at 122.</ref> Posner asserts that judges can make efficient decisions that serve “the broad-based social demand for efficient rules governing safety, property and transaction.”<ref>''Ibid'' at 122.</ref><br />
<br />
We certainly see this in play in Geffen v Goodman Estates, the judge re-confirms the equitable principle of undue influence and its presumption - protecting the integrity of transactions. Although it was found that the appellant was not victim to undue influence, in assessing situations when it can arise ensures that issues before the court are properly addressed and those who have suffered an unwarranted loss are remedied. This furthers the purpose of judges as economic decision makers who can develop and enforce efficient rules.<br />
<br />
=== The Normality of Maximizing Wealth ===<br />
In assessing the relationship between law and economics there is criticism as to whether the two should interact. Posner suggests, “If judges were to pursue wealth-maximization as their goal, then they would produce a morally attractive mix of rights, virtues, productive incentives and altruism.”<ref>''Ibid'' at 135.</ref> This seems logical. Conversely, Ronald Dworkin asserts that we should focus on redistribution as the means of increasing social wealth.<ref>''Ibid'' at 135.</ref> However, if an individual does not pay for a good we have no way of knowing what value the good has to the individual – thus are unable to confirm if there has been an increase in social wealth.<ref>''Ibid'' at 136.</ref><br />
<br />
That being said, assuming that individuals are always voluntarily engaging in a sale or purchase is naïve. Again equity appears, allowing for this theory to accurately exist by ensuring those who have been victim of a transaction they didn’t wish to do will be properly remedied. This will preserve concept of wealth-maximization and the idea that resources “be distributed according to their most highly valued use.”<ref>''Ibid'' at 136.</ref><br />
<br />
== Additional Application to Geffen v Goodman Estates ==<br />
In the Geffen v Goodman Estates, there was potential for the brothers to unduly influence Tzina to gift land to them. If this was the case, the value of the transaction would be unknown. The presumption of undue influence preserves the exchange of value. Assessing the relationship is important to the functioning of the efficiency model - it allows judges to remedy situations in which involuntary transactions have occurred.<br />
<br />
Dimock suggests that contracts exist to promote efficient exchanges - this is only accurate if the participants make a voluntary and influence free exchange. If a contract is entered into when an individual is victim of undue influence, that party will likely be suffering a loss and allowing for this type of influence to exist will decrease market efficiency by harming the integrity of the transactional process. By having a presumption of influence that arises in certain situations will ensure that individuals privy to a transaction ensure the process is voluntary and fair to maximize wealth and efficiency.<br />
<br />
Dimock might criticize the presumption of undue influence for raising transaction costs and thus lessening efficiency. To guard against presumption on may need to consult a lawyer or agree to a less than ideal bargain because of their position.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Law_As_Efficiency&diff=3474Course:Law3020/2014WT1/Group L/Law As Efficiency2014-03-25T18:05:12Z<p>Kruhlakj13: /* Law as Efficiency: Susan Dimock */</p>
<hr />
<div>== Law as Efficiency: Susan Dimock ==<br />
When assessing the relationship between law and economics, good law is efficient law. (page 116) The definition of efficiency in this analysis is based on wealth maximization. As articulated by Richard Posner, efficiency exists when wealth is maximized.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 117.</ref> Wealth is not limited to monetary gains, <br />
[[File:Richard posner harvardz.JPG|thumbnail|Richard Posner]]<br />
but any satisfactions that can be measured is recognized as wealth.<ref>''Ibid'' at 117.</ref> This principle requires that social wealth is maximized – resources are appropriately allocated to those who value it most.<ref>''Ibid'' at 117.</ref> Efficient legal rules ensure that this allocation is done in an efficient manner.<ref>''Ibid'' at 117.</ref> <br />
<br />
=== Economic Foundations of Wealth-Maximization ===<br />
Economist, Vilfred Pareto, established Pareto-superiority to measure efficiency.<ref>''Ibid'' at 118.</ref> Pareto-superiority assumes that all individuals are rational actors and they will only choose situations in which all parties are better off, thus maximizing the overall social wealth. Pareto-optimal addresses a state in which no more moves can be made to increase wealth without depriving others of their wealth.<ref>''Ibid'' at 118.</ref><br />
<br />
Yet, Pareto-superiority is not a realistic state because it fails to take into account negative impacts to third parties, thus economists developed an alternate measure of efficiency – the Kaldor-Hicks test.<ref>''Ibid'' at 119.</ref> This test allows for transactions to be made that result in third a party being worse off, only if the benefiting parties can compensate the loser - so that no one is worse off.<ref>''Ibid'' at 119</ref><br />
<br />
=== Equity and Economic Principles ===<br />
With these principles in mind economists begin their analysis of the market under the assumption that market transactions are voluntary and that people are “rational agents.”<ref>''Ibid'' at 120 and 121</ref> This assumption is unrealistic, however it does create a void that equitable principles, like the presumption of undue influence has to potential to fill. Like in Geffen v Goodman Estates, when a party is under the influence of another, their transactional decisions may not be voluntary. By the recognizing situations where undue influence has the potential to occur, the courts can return individuals to their former state if they were part of an involuntary transaction. Equity plays a large role in creating a more voluntary market, thus maximizing wealth and allowing for the economic theories to be more applicable. <br />
<br />
Equity complements the overall economic theory, allowing it to truly function by testing transactional relationships against the efficiency model. In situations where humans are not acting as rational or voluntary agents we are unable to determine the value of the exchange. Equity allows the judge to remedy these situations with equitable tools like the presumption of undue influence.<br />
<br />
=== Role of Legislators and Judges ===<br />
According to economists, legislators fail in the pursuit of economic efficiency. Their focus is self-interest and they redistributive rather than maximize wealth.<ref>''Ibid'' at 121.</ref><br />
<br />
In contrast, judges have the ability to properly facilitate efficiency.<ref>''Ibid'' at 121.</ref> Inefficient cases are the ones judges are most likely to hear, thus they have the opportunity to promote efficiency.<ref>''Ibid'' at 122.</ref> Posner asserts that judges can make efficient decisions that serve “the broad-based social demand for efficient rules governing safety, property and transaction.”<ref>''Ibid'' at 122.</ref><br />
<br />
We certainly see this in play in Geffen v Goodman Estates, the judge re-confirms the equitable principle of undue influence and its presumption - protecting the integrity of transactions. Although it was found that the appellant was not victim to undue influence, in assessing situations when it can arise ensures that issues before the court are properly addressed and those who have suffered an unwarranted loss are remedied. This furthers the purpose of judges as economic decision makers who can develop and enforce efficient rules.<br />
<br />
=== The Normality of Maximizing Wealth ===<br />
In assessing the relationship between law and economics there is criticism as to whether the two should interact. Posner suggests, “If judges were to pursue wealth-maximization as their goal, then they would produce a morally attractive mix of rights, virtues, productive incentives and altruism.”<ref>''Ibid'' at 135.</ref> This seems logical. Conversely, Ronald Dworkin asserts that we should focus on redistribution as the means of increasing social wealth.<ref>''Ibid'' at 135.</ref> However, if an individual does not pay for a good we have no way of knowing what value the good has to the individual – thus are unable to confirm if there has been an increase in social wealth.<ref>''Ibid'' at 136.</ref><br />
<br />
That being said, assuming that individuals are always voluntarily engaging in a sale or purchase is naïve. Again equity appears, allowing for this theory to accurately exist by ensuring those who have been victim of a transaction they didn’t wish to do will be properly remedied. This will preserve concept of wealth-maximization and the idea that resources “be distributed according to their most highly valued use.”<ref>''Ibid'' at 136.</ref><br />
<br />
== Additional Application to Geffen v Goodman Estates ==<br />
In the Geffen v Goodman Estates, there was potential for the brothers to unduly influence Tzina to gift land to them. If this was the case, the value of the transaction would be unknown. The presumption of undue influence preserves the exchange of value. Assessing the relationship is important to the functioning of the efficiency model - it allows judges to remedy situations in which involuntary transactions have occurred.<br />
<br />
Dimock suggests that contracts exist to promote efficient exchanges - this is only accurate if the participants make a voluntary and influence free exchange. If a contract is entered into when an individual is victim of undue influence, that party will likely be suffering a loss and allowing for this type of influence to exist will decrease market efficiency by harming the integrity of the transactional process. By having a presumption of influence that arises in certain situations will ensure that individuals privy to a transaction ensure the process is voluntary and fair to maximize wealth and efficiency.<br />
<br />
Dimock might criticize the presumption of undue influence for raising transaction costs and thus lessening efficiency. To guard against presumption on may need to consult a lawyer or agree to a less than ideal bargain because of their position.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Liberty-Paternalism&diff=3469Course:Law3020/2014WT1/Group L/Liberty-Paternalism2014-03-25T18:02:44Z<p>Kruhlakj13: /* The Harm Principle: John Stuart Mill */</p>
<hr />
<div>== The Harm Principle: John Stuart Mill ==<br />
John Stuart Mill in his essay, In Defence of Liberty, sets out his theory which focuses on the extent to which an individual can be governed (or interfered with) by society and the ruling class. There are a number of questions that Mill seeks to answer; predominantly, should the law be used to enforce the moral code (norms) of society, followed by the type of restrictions on the liberty of individuals that could be justified. In essence, Mill is attempting to conclude that, “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.”<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> Mill’s theory revolves around what is known as the harm principle. [[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumbnail|John Stuart Mill]]This principle suggests that society is only justified in restricting the liberty of its members only when it is necessary to prevent (serious) harm to others. Many other theories, from positivists to natural law, can be seen to support this principle. He brought forth this idea in a common sense way as it is in everyone’s self-interest to be protected from harm from others, “the prevention of harm to others is not only a sufficient but also a necessary condition of legitimate interference with the liberty of citizens by law.”<ref>''Ibid'' at 303.</ref><br /><br />
<br />
<br />
John Stuart Mill is very wary of the possibility of tyranny of the majority, especially the tyranny of the prevailing opinion and feeling. In his view, society should not be able to impose its own ideas and rules of conduct on any other citizen.<ref>''Ibid'' at 306.</ref> Protection from the group is very important to Mill, as each individual is independent over himself, his body and his mind; each person is their own sovereign. He sees a theory of “social rights” as an affront to the freedom of individuals. According to Mill, social rights will always be in violation of one group’s perception of the ideal, “So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify…”<ref>''Ibid'' at 317.</ref><br /><br />
<br />
In respect to moral vices and poor moral character, Mill does not advocate for punishment from society as long as one’s actions only affect himself. He establishes that one has a duty of self-respect and self-development, however the individual has no accountability to other’s in society as it is not, “for the good of mankind that he be held accountable. Furthermore, instead of punishing those individuals for mismanagement of their lives, it would instead be more prudent to alleviate their suffering by showing them the right path through socialization. In order to ensure that people grow up to be good citizens capable of being contributing members of society, it is essential for them to be raised correctly while they are still young, “If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives, society has itself to blame for the consequences.”<ref>''Ibid'' at 313.</ref><br /><br />
<br />
Above all, Mill asserts that individuals will endeavor on their own path, and their personal actions, no matter how offensive to the morality of society, should not be governed by others.<br />
<br />
== Paternalism ==<br />
Dworkin offers an expansion to Mills harm principle. He asserts that interference is justified when failing to do so would result in damage to the individual.<ref>''Ibid'' at 321.</ref> Gerald Dworkin argues that there are a large number of cases in which paternalistic interference in the liberty of other individuals can be warranted.<ref>''Ibid'' at 321.</ref> In situations where individuals make decisions which have, “far-reaching, potentially dangerous and irreversible” consequences then restricting freedom can be justified.<ref>''Ibid'' at 321.</ref> Dworkin suggests that, “if the consequences are likely to significantly undermine the person’s ability to make free, rational and autonomous decisions,” then a rational person would consent to some restrictions in order to prevent harm to themselves.<ref>''Ibid'' at 321.</ref> In these circumstances, Dworkin argues that the state would be able to intervene. <br />
<br />
== Application to Geffen v Goodman Estates ==<br />
The presumption of undue influence is a principle that liberalism may not have much commentary on. There is not an apparent infringement of individual liberties in the application of the presumption.<br /><br />
<br />
However, Mill might assert that this presumption is too broad and might attempt to remedy situations where the “victim” had intended to enter into the transaction. Mill believes self-autonomy to be the utmost importance and saddling relationships with presumptions such as this might ultimately threaten an individual's freedom of choice. Just because something might appear to be a bad deal, it is not up to the courts to place value on the decisions of individuals. Based on this, it is likely that Mill would agree with the decision of the court to let the agreement stand.<br /><br />
<br />
In contrast, Dworkin might suggest that the presumption of undue influence protects minority parties who may be unable to protect themselves, providing them with a means to get out of an unfair relationship. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Liberty-Paternalism&diff=3464Course:Law3020/2014WT1/Group L/Liberty-Paternalism2014-03-25T18:02:14Z<p>Kruhlakj13: /* The Harm Principle: John Stuart Mill */</p>
<hr />
<div>== The Harm Principle: John Stuart Mill ==<br />
John Stuart Mill in his essay, In Defence of Liberty, sets out his theory which focuses on the extent to which an individual can be governed (or interfered with) by society and the ruling class. There are a number of questions that Mill seeks to answer; predominantly, should the law be used to enforce the moral code (norms) of society, followed by the type of restrictions on the liberty of individuals that could be justified. In essence, Mill is attempting to conclude that, “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.”<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 306.</ref> Mill’s theory revolves around what is known as the harm principle. This principle suggests that society is only justified in restricting the liberty of its members only when it is necessary to prevent (serious) harm to others. Many other theories, from positivists to natural law, can be seen to support this principle. He brought forth this idea in a common sense way as it is in everyone’s self-interest to be protected from harm from others, “the prevention of harm to others is not only a sufficient but also a necessary condition of legitimate interference with the liberty of citizens by law.”<ref>''Ibid'' at 303.</ref><br /><br />
[[File:John Stuart Mill by London Stereoscopic Company, c1870.jpg|thumbnail|John Stuart Mill]]<br />
<br />
John Stuart Mill is very wary of the possibility of tyranny of the majority, especially the tyranny of the prevailing opinion and feeling. In his view, society should not be able to impose its own ideas and rules of conduct on any other citizen.<ref>''Ibid'' at 306.</ref> Protection from the group is very important to Mill, as each individual is independent over himself, his body and his mind; each person is their own sovereign. He sees a theory of “social rights” as an affront to the freedom of individuals. According to Mill, social rights will always be in violation of one group’s perception of the ideal, “So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify…”<ref>''Ibid'' at 317.</ref><br /><br />
<br />
In respect to moral vices and poor moral character, Mill does not advocate for punishment from society as long as one’s actions only affect himself. He establishes that one has a duty of self-respect and self-development, however the individual has no accountability to other’s in society as it is not, “for the good of mankind that he be held accountable. Furthermore, instead of punishing those individuals for mismanagement of their lives, it would instead be more prudent to alleviate their suffering by showing them the right path through socialization. In order to ensure that people grow up to be good citizens capable of being contributing members of society, it is essential for them to be raised correctly while they are still young, “If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives, society has itself to blame for the consequences.”<ref>''Ibid'' at 313.</ref><br /><br />
<br />
Above all, Mill asserts that individuals will endeavor on their own path, and their personal actions, no matter how offensive to the morality of society, should not be governed by others.<br />
<br />
== Paternalism ==<br />
Dworkin offers an expansion to Mills harm principle. He asserts that interference is justified when failing to do so would result in damage to the individual.<ref>''Ibid'' at 321.</ref> Gerald Dworkin argues that there are a large number of cases in which paternalistic interference in the liberty of other individuals can be warranted.<ref>''Ibid'' at 321.</ref> In situations where individuals make decisions which have, “far-reaching, potentially dangerous and irreversible” consequences then restricting freedom can be justified.<ref>''Ibid'' at 321.</ref> Dworkin suggests that, “if the consequences are likely to significantly undermine the person’s ability to make free, rational and autonomous decisions,” then a rational person would consent to some restrictions in order to prevent harm to themselves.<ref>''Ibid'' at 321.</ref> In these circumstances, Dworkin argues that the state would be able to intervene. <br />
<br />
== Application to Geffen v Goodman Estates ==<br />
The presumption of undue influence is a principle that liberalism may not have much commentary on. There is not an apparent infringement of individual liberties in the application of the presumption.<br /><br />
<br />
However, Mill might assert that this presumption is too broad and might attempt to remedy situations where the “victim” had intended to enter into the transaction. Mill believes self-autonomy to be the utmost importance and saddling relationships with presumptions such as this might ultimately threaten an individual's freedom of choice. Just because something might appear to be a bad deal, it is not up to the courts to place value on the decisions of individuals. Based on this, it is likely that Mill would agree with the decision of the court to let the agreement stand.<br /><br />
<br />
In contrast, Dworkin might suggest that the presumption of undue influence protects minority parties who may be unable to protect themselves, providing them with a means to get out of an unfair relationship. <br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=3459Course:Law3020/2014WT1/Group L/System Of Rights2014-03-25T18:01:16Z<p>Kruhlakj13: /* Ronald Dworkin: Law as a System of Rights */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame|250x300px]]<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions.<br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/System_Of_Rights&diff=3458Course:Law3020/2014WT1/Group L/System Of Rights2014-03-25T18:00:33Z<p>Kruhlakj13: /* Ronald Dworkin: Law as a System of Rights */</p>
<hr />
<div>== Ronald Dworkin: Law as a System of Rights ==<br />
In his writings, Dworkin is responding to and rejecting the positivist view on rules, their validity and judicial decision-making. He specifically names Hart as the main target in his theory.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 243.</ref> Positivists hold that when difficult cases arise that do not follow the current state of the rules, then the judge is exercising his discretion in coming to a judgement.<ref>''Ibid'' at 252.</ref> <br />
[[File:Ronald Dworkin at the Brooklyn Book Festival.jpg|thumbnail|Ronald Dworkin|frame]]<br />
Dworkin asserts that it is not discretion in the strong sense that is being exercise; he states that the judge is actually applying the underlying principles of our legal system to arrive at his outcome. He is merely uncovering and using them, as they run through the precedent that allowed the law to develop to this point. In response to the question of which principles to apply at what point, Dworkin states that differing principles have differing weights, and what appears to be discretion to the positivist, is actually the weighting of the importance of these principles in each case.<br />
<br />
=== Rules v Principles ===<br />
The difference between a rule and principle is that a rule operates in an all-or-nothing fashion. If the case falls within these rules then the rule applies and if the case falls outside the rules then such a rule does not apply; Dworkin uses the example of 3 strikes signalling that the batter is out in baseball as a rule.<ref>''Ibid'' at 245.</ref> The application of principles can result in the creation of rules.<br />
<br />
=== Role of Judges ===<br />
The role of judges is to analyze the specific facts of a case and try to remedy it with a defined rule. Judges are bound by rules and can't disregard principles in their decision making - they must pull from the principles and use legal reasoning to make difficult decisions. In the analysis of hard cases, decisions based on principles will affect future decisions.<br />
<br />
== Application to Geffen v Goodman Estate ==<br />
In the case of ''Geffen v Goodman Estates'', the judges make multiple references to principles to guide the outcome. In the judgement, the judge states that the answer to this case will be resolved by referring back to first principles and looking to the purpose the doctrine of undue influence was attempting to achieve.<ref>''Geffen v Goodman Estate'', [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53 at para 36.</ref> Such a statement is directly analogous to what Dworkin postulates judges do to arrive at their decisions. The judge found that the purpose to be served was protecting people from abuses of power, confidence or trust.<ref>''Ibid'' at para 37.</ref> The judge also achieved the goal of continuity by not wanting to constrain the doctrine and allow it to apply to a wide variety of transactions. The principle of freedom of contract and inviolability of bargains was also discussed as an important consideration and a tenet that needs to be protected.<ref>Ibid at para 43.</ref> The use of this principle shed light on the final articulation of the test required for a presumption of undue influence to be imposed; the division between commercial transactions and gifts or transactions without consideration allows for the maintenance of this contractual principle while still giving deference to the principle of protection from abuses in relationships of influence. That a commercial transaction requires the demonstration of manifest disadvantage, while a non-commercial transaction only need show a relationship of influence, speaks to the weighing and balancing of competing principles.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Separation_Thesis&diff=3456Course:Law3020/2014WT1/Group L/Separation Thesis2014-03-25T17:59:26Z<p>Kruhlakj13: </p>
<hr />
<div>== The Separation Theory ==<br />
H.L.A Hart asserts that legal and moral rule systems are distinct and separate, meaning that morality is not a mandatory component of legal rule. Morality and law are separate systems that can, and often do, intersect, but morality is not a requirement for a law to function. A law can be a law regardless of its grounding in morality.<br /><br />
<br />
Hart does not believe that laws should lose their title as law because they clash with our idea of morality and what is right. To Hart, when law and morality clash, we as individuals must weigh our obligations to the legal system and what is right and then decide if a law is too evil to follow. Therefore, Hart theorizes that people should decide with their own moral compass if they should follow a law or not. <br />
<br />
=== Law as a Rule Governed Practice ===<br />
Hart asserts that laws are more than mere commandments, they need to be obeyed for reasons other than punishment. Laws must be rooted in the rule of recognition to be stable and effective. This requires a consistent procedure of the part of the common law judges.<br /><br />
<br />
Hart points to three ways in which the rule of law varies from basic rules:<br /><br />
<br />
# Legal rules are special because they are backed up by the system which is a machine that enforces and creates legal rules<br />
# Must be recognized as valid and right by the majority of people in society<br />
# The players in a legal system themselves have to recognize that they should follow this law and enforce it<br />
<br />
=== The Role of Judges ===<br />
If a case falls outside the “settled core meaning” this is a “penumbra.” A penumbra arises when laws have an “unclear or indeterminate” meaning. <ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 183.</ref> To settle penumbra cases, judges need to pull from the core settled meaning and interpret the meanings to draft an appropriate conclusion. Hart explains, judges evolve laws by resolving cases which fall into this category. To Hart, judges draw from the rule governed practices and apply rules to maintain a consistent judgements so others can follow the development of the law.<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Hart would likely argue that the continued existence of equitable principles, like the presumption of undue influence is based on coincidence. While these principles initially arose to combat the harshness of common law, they merely exists to fill common law gaps and are no longer grounded in morality.<br /><br />
<br />
Hart may assert that the presumption of undue influence is not a command, but would be followed for various reasons other than fear of punishment. It is likely the majority would exercise caution in situations where this presumption can arise because it is in their best interest in the moment and in the long term. <br /><br />
<br />
However, he might take issue with the instability of this presumption because it is very fact specific and not the result of a consistent legal procedure.<br />
<br />
== The Morality of Law ==<br />
Lon Fuller criticizes the separation theory, claiming it is fundamentally artificial. Without morality, people will be uncertain as to where law comes from and why it should be followed. There will be no basis on which an individual can evaluate law without morality.<br /><br />
<br />
Lon L. Fuller asserts that law is grounded in morality. Fuller rejects the idea of legal positivists that laws need not be moral. “Law” is more than a label and they require some moral substance to properly function in society. Fuller argues that positivists fail to address the dilemma that arises with the obligation to obey laws and the moral duty to not obey immoral laws. <br /><br />
<br />
Fuller states that the objective of law is to produce good order, not just order in society. This can only be achieved if the social acceptance of legal rules is grounded in internal and external morality. When laws don’t have the component of inner morality they disintegrate and stop functioning as a law. Without external morality there is no guide as to why people should obey the law.<br />
<br />
=== Role of Judges ===<br />
The judges role is to interpret and apply the law. Judges need to be aware of the purpose of the law and guard against bad laws. They have the responsibility of changing laws that do not conform with inner morality.<br />
<br />
=== Inner Morality ===<br />
Law itself has an inner morality - which is the purpose of the law. Good law that possesses inner morality will establish order in society and make for a stable legal system.<br /><br />
<br />
Law must be a coherent system. Laws must meet with the following factors to possess inner morality and be effective in order society:<br /><br />
<br />
# Decisions must not be ad hoc (disconnected)<br />
# Rules must be public, knowable<br />
# There can be no abuse of retroactive legislation<br />
# The rules are understandable<br />
# Rules are not contradictory<br />
# Rules can be obeyed <br />
# Rules are infrequently changed – so people can orient their behaviour<br />
# There is no disjunction between rules<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Fuller would find that the presumption of undue influence would strongly represent a moral law. Being based in equity, the presumption of undue influence, guides society on moral behaviour, allowing for the creation of good order. Fuller would confirm that the presumption of undue influence has sufficient inner morality to function as a good law because it protects minorities and the trust required for a proper transaction, making for a more stable and organized society.<br /><br />
<br />
Assuming Fuller agrees with the presumption of undue influence, the judges were right in the unmodified application of the presumption. Judges need only make changes if a law doesn’t conform with inner morality and this was not the case in ''Goodman v Geffen Estates''.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Separation_Thesis&diff=3453Course:Law3020/2014WT1/Group L/Separation Thesis2014-03-25T17:59:03Z<p>Kruhlakj13: </p>
<hr />
<div>== The Separation Theory ==<br />
H.L.A Hart asserts that legal and moral rule systems are distinct and separate, meaning that morality is not a mandatory component of legal rule. Morality and law are separate systems that can, and often do, intersect, but morality is not a requirement for a law to function. A law can be a law regardless of its grounding in morality.<br /><br />
[[File:Herbert Hart.jpg|thumbnail|HLA Hart|frame]]<br />
Hart does not believe that laws should lose their title as law because they clash with our idea of morality and what is right. To Hart, when law and morality clash, we as individuals must weigh our obligations to the legal system and what is right and then decide if a law is too evil to follow. Therefore, Hart theorizes that people should decide with their own moral compass if they should follow a law or not. <br />
<br />
=== Law as a Rule Governed Practice ===<br />
Hart asserts that laws are more than mere commandments, they need to be obeyed for reasons other than punishment. Laws must be rooted in the rule of recognition to be stable and effective. This requires a consistent procedure of the part of the common law judges.<br /><br />
<br />
Hart points to three ways in which the rule of law varies from basic rules:<br /><br />
<br />
# Legal rules are special because they are backed up by the system which is a machine that enforces and creates legal rules<br />
# Must be recognized as valid and right by the majority of people in society<br />
# The players in a legal system themselves have to recognize that they should follow this law and enforce it<br />
<br />
=== The Role of Judges ===<br />
If a case falls outside the “settled core meaning” this is a “penumbra.” A penumbra arises when laws have an “unclear or indeterminate” meaning. <ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 183.</ref> To settle penumbra cases, judges need to pull from the core settled meaning and interpret the meanings to draft an appropriate conclusion. Hart explains, judges evolve laws by resolving cases which fall into this category. To Hart, judges draw from the rule governed practices and apply rules to maintain a consistent judgements so others can follow the development of the law.<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Hart would likely argue that the continued existence of equitable principles, like the presumption of undue influence is based on coincidence. While these principles initially arose to combat the harshness of common law, they merely exists to fill common law gaps and are no longer grounded in morality.<br /><br />
<br />
Hart may assert that the presumption of undue influence is not a command, but would be followed for various reasons other than fear of punishment. It is likely the majority would exercise caution in situations where this presumption can arise because it is in their best interest in the moment and in the long term. <br /><br />
<br />
However, he might take issue with the instability of this presumption because it is very fact specific and not the result of a consistent legal procedure.<br />
<br />
== The Morality of Law ==<br />
Lon Fuller criticizes the separation theory, claiming it is fundamentally artificial. Without morality, people will be uncertain as to where law comes from and why it should be followed. There will be no basis on which an individual can evaluate law without morality.<br /><br />
<br />
Lon L. Fuller asserts that law is grounded in morality. Fuller rejects the idea of legal positivists that laws need not be moral. “Law” is more than a label and they require some moral substance to properly function in society. Fuller argues that positivists fail to address the dilemma that arises with the obligation to obey laws and the moral duty to not obey immoral laws. <br /><br />
<br />
Fuller states that the objective of law is to produce good order, not just order in society. This can only be achieved if the social acceptance of legal rules is grounded in internal and external morality. When laws don’t have the component of inner morality they disintegrate and stop functioning as a law. Without external morality there is no guide as to why people should obey the law.<br />
<br />
=== Role of Judges ===<br />
The judges role is to interpret and apply the law. Judges need to be aware of the purpose of the law and guard against bad laws. They have the responsibility of changing laws that do not conform with inner morality.<br />
<br />
=== Inner Morality ===<br />
Law itself has an inner morality - which is the purpose of the law. Good law that possesses inner morality will establish order in society and make for a stable legal system.<br /><br />
<br />
Law must be a coherent system. Laws must meet with the following factors to possess inner morality and be effective in order society:<br /><br />
<br />
# Decisions must not be ad hoc (disconnected)<br />
# Rules must be public, knowable<br />
# There can be no abuse of retroactive legislation<br />
# The rules are understandable<br />
# Rules are not contradictory<br />
# Rules can be obeyed <br />
# Rules are infrequently changed – so people can orient their behaviour<br />
# There is no disjunction between rules<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Fuller would find that the presumption of undue influence would strongly represent a moral law. Being based in equity, the presumption of undue influence, guides society on moral behaviour, allowing for the creation of good order. Fuller would confirm that the presumption of undue influence has sufficient inner morality to function as a good law because it protects minorities and the trust required for a proper transaction, making for a more stable and organized society.<br /><br />
<br />
Assuming Fuller agrees with the presumption of undue influence, the judges were right in the unmodified application of the presumption. Judges need only make changes if a law doesn’t conform with inner morality and this was not the case in ''Goodman v Geffen Estates''.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Separation_Thesis&diff=3449Course:Law3020/2014WT1/Group L/Separation Thesis2014-03-25T17:57:58Z<p>Kruhlakj13: </p>
<hr />
<div>== The Separation Theory ==<br />
H.L.A Hart asserts that legal and moral rule systems are distinct and separate, meaning that morality is not a mandatory component of legal rule. Morality and law are separate systems that can, and often do, intersect, but morality is not a requirement for a law to function. A law can be a law regardless of its grounding in morality.<br /><br />
<br />
[[File:Herbert Hart.jpg|thumbnail|H.L.A. Hart]]<br />
<br />
Hart does not believe that laws should lose their title as law because they clash with our idea of morality and what is right. To Hart, when law and morality clash, we as individuals must weigh our obligations to the legal system and what is right and then decide if a law is too evil to follow. Therefore, Hart theorizes that people should decide with their own moral compass if they should follow a law or not. <br />
<br />
=== Law as a Rule Governed Practice ===<br />
Hart asserts that laws are more than mere commandments, they need to be obeyed for reasons other than punishment. Laws must be rooted in the rule of recognition to be stable and effective. This requires a consistent procedure of the part of the common law judges.<br /><br />
<br />
Hart points to three ways in which the rule of law varies from basic rules:<br /><br />
<br />
# Legal rules are special because they are backed up by the system which is a machine that enforces and creates legal rules<br />
# Must be recognized as valid and right by the majority of people in society<br />
# The players in a legal system themselves have to recognize that they should follow this law and enforce it<br />
<br />
=== The Role of Judges ===<br />
If a case falls outside the “settled core meaning” this is a “penumbra.” A penumbra arises when laws have an “unclear or indeterminate” meaning. <ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 183.</ref> To settle penumbra cases, judges need to pull from the core settled meaning and interpret the meanings to draft an appropriate conclusion. Hart explains, judges evolve laws by resolving cases which fall into this category. To Hart, judges draw from the rule governed practices and apply rules to maintain a consistent judgements so others can follow the development of the law.<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Hart would likely argue that the continued existence of equitable principles, like the presumption of undue influence is based on coincidence. While these principles initially arose to combat the harshness of common law, they merely exists to fill common law gaps and are no longer grounded in morality.<br /><br />
<br />
Hart may assert that the presumption of undue influence is not a command, but would be followed for various reasons other than fear of punishment. It is likely the majority would exercise caution in situations where this presumption can arise because it is in their best interest in the moment and in the long term. <br /><br />
<br />
However, he might take issue with the instability of this presumption because it is very fact specific and not the result of a consistent legal procedure.<br />
<br />
== The Morality of Law ==<br />
Lon Fuller criticizes the separation theory, claiming it is fundamentally artificial. Without morality, people will be uncertain as to where law comes from and why it should be followed. There will be no basis on which an individual can evaluate law without morality.<br /><br />
<br />
Lon L. Fuller asserts that law is grounded in morality. Fuller rejects the idea of legal positivists that laws need not be moral. “Law” is more than a label and they require some moral substance to properly function in society. Fuller argues that positivists fail to address the dilemma that arises with the obligation to obey laws and the moral duty to not obey immoral laws. <br /><br />
<br />
Fuller states that the objective of law is to produce good order, not just order in society. This can only be achieved if the social acceptance of legal rules is grounded in internal and external morality. When laws don’t have the component of inner morality they disintegrate and stop functioning as a law. Without external morality there is no guide as to why people should obey the law.<br />
<br />
=== Role of Judges ===<br />
The judges role is to interpret and apply the law. Judges need to be aware of the purpose of the law and guard against bad laws. They have the responsibility of changing laws that do not conform with inner morality.<br />
<br />
=== Inner Morality ===<br />
Law itself has an inner morality - which is the purpose of the law. Good law that possesses inner morality will establish order in society and make for a stable legal system.<br /><br />
<br />
Law must be a coherent system. Laws must meet with the following factors to possess inner morality and be effective in order society:<br /><br />
<br />
# Decisions must not be ad hoc (disconnected)<br />
# Rules must be public, knowable<br />
# There can be no abuse of retroactive legislation<br />
# The rules are understandable<br />
# Rules are not contradictory<br />
# Rules can be obeyed <br />
# Rules are infrequently changed – so people can orient their behaviour<br />
# There is no disjunction between rules<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Fuller would find that the presumption of undue influence would strongly represent a moral law. Being based in equity, the presumption of undue influence, guides society on moral behaviour, allowing for the creation of good order. Fuller would confirm that the presumption of undue influence has sufficient inner morality to function as a good law because it protects minorities and the trust required for a proper transaction, making for a more stable and organized society.<br /><br />
<br />
Assuming Fuller agrees with the presumption of undue influence, the judges were right in the unmodified application of the presumption. Judges need only make changes if a law doesn’t conform with inner morality and this was not the case in ''Goodman v Geffen Estates''.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Separation_Thesis&diff=3445Course:Law3020/2014WT1/Group L/Separation Thesis2014-03-25T17:57:33Z<p>Kruhlakj13: /* The Separation Theory */</p>
<hr />
<div>== The Separation Theory ==<br />
H.L.A Hart asserts that legal and moral rule systems are distinct and separate, meaning that morality is not a mandatory component of legal rule. Morality and law are separate systems that can, and often do, intersect, but morality is not a requirement for a law to function. A law can be a law regardless of its grounding in morality.<br /><br />
[[File:Herbert Hart.jpg|thumbnail|H.L.A. Hart]]<br />
<br />
Hart does not believe that laws should lose their title as law because they clash with our idea of morality and what is right. To Hart, when law and morality clash, we as individuals must weigh our obligations to the legal system and what is right and then decide if a law is too evil to follow. Therefore, Hart theorizes that people should decide with their own moral compass if they should follow a law or not. <br />
<br />
=== Law as a Rule Governed Practice ===<br />
Hart asserts that laws are more than mere commandments, they need to be obeyed for reasons other than punishment. Laws must be rooted in the rule of recognition to be stable and effective. This requires a consistent procedure of the part of the common law judges.<br /><br />
<br />
Hart points to three ways in which the rule of law varies from basic rules:<br /><br />
<br />
# Legal rules are special because they are backed up by the system which is a machine that enforces and creates legal rules<br />
# Must be recognized as valid and right by the majority of people in society<br />
# The players in a legal system themselves have to recognize that they should follow this law and enforce it<br />
<br />
=== The Role of Judges ===<br />
If a case falls outside the “settled core meaning” this is a “penumbra.” A penumbra arises when laws have an “unclear or indeterminate” meaning. <ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 183.</ref> To settle penumbra cases, judges need to pull from the core settled meaning and interpret the meanings to draft an appropriate conclusion. Hart explains, judges evolve laws by resolving cases which fall into this category. To Hart, judges draw from the rule governed practices and apply rules to maintain a consistent judgements so others can follow the development of the law.<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Hart would likely argue that the continued existence of equitable principles, like the presumption of undue influence is based on coincidence. While these principles initially arose to combat the harshness of common law, they merely exists to fill common law gaps and are no longer grounded in morality.<br /><br />
<br />
Hart may assert that the presumption of undue influence is not a command, but would be followed for various reasons other than fear of punishment. It is likely the majority would exercise caution in situations where this presumption can arise because it is in their best interest in the moment and in the long term. <br /><br />
<br />
However, he might take issue with the instability of this presumption because it is very fact specific and not the result of a consistent legal procedure.<br />
<br />
== The Morality of Law ==<br />
Lon Fuller criticizes the separation theory, claiming it is fundamentally artificial. Without morality, people will be uncertain as to where law comes from and why it should be followed. There will be no basis on which an individual can evaluate law without morality.<br /><br />
<br />
Lon L. Fuller asserts that law is grounded in morality. Fuller rejects the idea of legal positivists that laws need not be moral. “Law” is more than a label and they require some moral substance to properly function in society. Fuller argues that positivists fail to address the dilemma that arises with the obligation to obey laws and the moral duty to not obey immoral laws. <br /><br />
<br />
Fuller states that the objective of law is to produce good order, not just order in society. This can only be achieved if the social acceptance of legal rules is grounded in internal and external morality. When laws don’t have the component of inner morality they disintegrate and stop functioning as a law. Without external morality there is no guide as to why people should obey the law.<br />
<br />
=== Role of Judges ===<br />
The judges role is to interpret and apply the law. Judges need to be aware of the purpose of the law and guard against bad laws. They have the responsibility of changing laws that do not conform with inner morality.<br />
<br />
=== Inner Morality ===<br />
Law itself has an inner morality - which is the purpose of the law. Good law that possesses inner morality will establish order in society and make for a stable legal system.<br /><br />
<br />
Law must be a coherent system. Laws must meet with the following factors to possess inner morality and be effective in order society:<br /><br />
<br />
# Decisions must not be ad hoc (disconnected)<br />
# Rules must be public, knowable<br />
# There can be no abuse of retroactive legislation<br />
# The rules are understandable<br />
# Rules are not contradictory<br />
# Rules can be obeyed <br />
# Rules are infrequently changed – so people can orient their behaviour<br />
# There is no disjunction between rules<br />
<br />
=== Application to Geffen v Goodman Estates ===<br />
Fuller would find that the presumption of undue influence would strongly represent a moral law. Being based in equity, the presumption of undue influence, guides society on moral behaviour, allowing for the creation of good order. Fuller would confirm that the presumption of undue influence has sufficient inner morality to function as a good law because it protects minorities and the trust required for a proper transaction, making for a more stable and organized society.<br /><br />
<br />
Assuming Fuller agrees with the presumption of undue influence, the judges were right in the unmodified application of the presumption. Judges need only make changes if a law doesn’t conform with inner morality and this was not the case in ''Goodman v Geffen Estates''.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Positivism&diff=3443Course:Law3020/2014WT1/Group L/Positivism2014-03-25T17:56:32Z<p>Kruhlakj13: /* Legal Positivism: John Austin */</p>
<hr />
<div>== Legal Positivism: John Austin ==<br />
<br />
Positive law is a breakaway from the approach of natural law. For a positive law theorist, laws are created without a view toward the moral implications that the laws produce. According to John Austin, a leading positivist thinker, “lawmakers may strive for congruence with morality, but – “law itself is the standard of justice.”” Additionally, positivists believe that there is no conceptual requirement that law must meet some kind of moral end, although they do acknowledge there is the possibility that some laws may be unjust or immoral. However, if those laws are implemented in the correct fashion they are still a valid law. This is known as the separation thesis, which has three main features:<br /><br />
<br />
:First, it allows us to make sense of the common observation that we are in fact familiar with immoral and unjust laws. Second, by separating law and morality it allows us to use morality as an independent standard against which we can assess the law…Morality and justice then provide an independent ideal against which we can just the law itself. Finally, the positivist position provides what seems to be a better description of the position of the average citizen facing an unjust or immoral legal requirement.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.</ref><br /><br />
[[File:John Austin.jpg|thumbnail|John Austin|frame]]<br />
<br />
== Command Theory of Law ==<br />
<br />
John Austin’s theory is known as “law as command”, a theory that is primarily concerned with relationships of power that are found in the world. In general, Austin believes that laws are defined in terms of commands issued by superiors to subordinates, which are backed by the threat of sanction should the subordinates fail to follow the laws, “A law… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”<ref>''Ibid'' at 37.</ref> In order to delineate which rules need to be followed as law, Austin set out three directives that govern human behaviour:<br />
<br /><br />
<br />
# God’s Law: purview of religion (some revealed, some not) for those that are not humans use the index of utility to determine as best they can what God’s commands are. God wants us to be happy (utilitarianism) in general, just pick what you think would make society the happiest. <br />
# Positive Morality: includes rules of clubs/voluntary associations, etiquette, common opinion on matters of right and wrong, international law and constitutional law. These are human made rules governing human conduct that lack one or more of the essential conditions of law<br />
# Positive Law: laws set by humans to other humans. Set by the boss of an independent political community to civilians in the community. Commands backed by threat of sanctions. Impose a duty of compliance on the civilians.<br />
<br />
<br /><br />
According to Austin, the only two directives that meet the requirements for an actual law are those made by God and the positive laws. God as a sovereign is essentially a given in Austin’s theory, however to determine whether a human is a sovereign, thus capable of issuing commands to subordinates, he must be recognized. The sovereign (either individual or aggregate body) must be a determinate and common superior who the bulk of society are in the habit of obedience or submission. Austin summarizes his thoughts on superiority in the following, “whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior.”<ref>''Ibid'' at 44.</ref><br /><br />
<br />
Positive morality rules are not laws because there are no punishments if one doesn’t choose to follow the rules. A command is distinguished from a rule in that one is liable to endure an evil if they do not comply with a command, therefore the subordinate is duty bound to obey it. Any time there is a reward offered for some service there is no law, as Austin declares that one is not obliged to follow said rule, they are simply induced into competing the action. There is no threat of an evil coming your way should one fail to complete the task.<br /><br />
<br />
Laws must also be permanent and specific in order to be valid. Should there be a non-specific regulation or sanction, Austin would find that to be a rule as opposed to a law. The lawgiver must determine a class or description of acts that are prohibited generally and indefinitely, should they be broken there must be general and specific punishment.<br /><br />
<br />
According to positivists, when a judge attempts to make a law they are simply applying the limited power that was delegated to them by their superiors. They are acting as “ministers” of the superiors by issuing specific commands as opposed to generalized rules which apply to an entire class. The superiors are able to reverse the rules made by judges. When a judge applies a customary law, they are issuing a tacit command (signified by conduct as opposed to express commands which are spoken or written).<ref>''Ibid'' at 48.</ref> These customary rules which are turned into legal rules by judges become tacit commands that are permitted by the sovereign legislature, “the state which is able to abolish, permits its ministers (judges) to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”<ref>''Ibid'' at 48.</ref> <br />
== Application to Geffen v. Goodman Estates ==<br />
<br />
Judge made law (common law) is actually no law at all, and can be easily overruled by legislation. However, as long as the sovereign accepts the common law - it will continue to act like law. While the judges in the case of ''Geffen v Goodman Estates'' are not trying to create new common law, Austin would likely reject the presumption of undue influence as valid law because it lacks his three requirements as discussed above.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Positivism&diff=3440Course:Law3020/2014WT1/Group L/Positivism2014-03-25T17:56:15Z<p>Kruhlakj13: /* Legal Positivism: John Austin */</p>
<hr />
<div>== Legal Positivism: John Austin ==<br />
<br />
Positive law is a breakaway from the approach of natural law. For a positive law theorist, laws are created without a view toward the moral implications that the laws produce. According to John Austin, a leading positivist thinker, “lawmakers may strive for congruence with morality, but – “law itself is the standard of justice.”” Additionally, positivists believe that there is no conceptual requirement that law must meet some kind of moral end, although they do acknowledge there is the possibility that some laws may be unjust or immoral. However, if those laws are implemented in the correct fashion they are still a valid law. This is known as the separation thesis, which has three main features:<br /><br />
<br />
:First, it allows us to make sense of the common observation that we are in fact familiar with immoral and unjust laws. Second, by separating law and morality it allows us to use morality as an independent standard against which we can assess the law…Morality and justice then provide an independent ideal against which we can just the law itself. Finally, the positivist position provides what seems to be a better description of the position of the average citizen facing an unjust or immoral legal requirement.<ref>Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law. Toronto: Pearson Education Canada, 2002 at 35.</ref><br /><br />
[[File:John Austin.jpg|thumbnail|John Austin|frame|300x250x]]<br />
<br />
== Command Theory of Law ==<br />
<br />
John Austin’s theory is known as “law as command”, a theory that is primarily concerned with relationships of power that are found in the world. In general, Austin believes that laws are defined in terms of commands issued by superiors to subordinates, which are backed by the threat of sanction should the subordinates fail to follow the laws, “A law… may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”<ref>''Ibid'' at 37.</ref> In order to delineate which rules need to be followed as law, Austin set out three directives that govern human behaviour:<br />
<br /><br />
<br />
# God’s Law: purview of religion (some revealed, some not) for those that are not humans use the index of utility to determine as best they can what God’s commands are. God wants us to be happy (utilitarianism) in general, just pick what you think would make society the happiest. <br />
# Positive Morality: includes rules of clubs/voluntary associations, etiquette, common opinion on matters of right and wrong, international law and constitutional law. These are human made rules governing human conduct that lack one or more of the essential conditions of law<br />
# Positive Law: laws set by humans to other humans. Set by the boss of an independent political community to civilians in the community. Commands backed by threat of sanctions. Impose a duty of compliance on the civilians.<br />
<br />
<br /><br />
According to Austin, the only two directives that meet the requirements for an actual law are those made by God and the positive laws. God as a sovereign is essentially a given in Austin’s theory, however to determine whether a human is a sovereign, thus capable of issuing commands to subordinates, he must be recognized. The sovereign (either individual or aggregate body) must be a determinate and common superior who the bulk of society are in the habit of obedience or submission. Austin summarizes his thoughts on superiority in the following, “whoever can oblige another to comply with his wishes, is the superior of that other, so far as the ability reaches: The party who is obnoxious to the impending evil, being to that same extent, the inferior.”<ref>''Ibid'' at 44.</ref><br /><br />
<br />
Positive morality rules are not laws because there are no punishments if one doesn’t choose to follow the rules. A command is distinguished from a rule in that one is liable to endure an evil if they do not comply with a command, therefore the subordinate is duty bound to obey it. Any time there is a reward offered for some service there is no law, as Austin declares that one is not obliged to follow said rule, they are simply induced into competing the action. There is no threat of an evil coming your way should one fail to complete the task.<br /><br />
<br />
Laws must also be permanent and specific in order to be valid. Should there be a non-specific regulation or sanction, Austin would find that to be a rule as opposed to a law. The lawgiver must determine a class or description of acts that are prohibited generally and indefinitely, should they be broken there must be general and specific punishment.<br /><br />
<br />
According to positivists, when a judge attempts to make a law they are simply applying the limited power that was delegated to them by their superiors. They are acting as “ministers” of the superiors by issuing specific commands as opposed to generalized rules which apply to an entire class. The superiors are able to reverse the rules made by judges. When a judge applies a customary law, they are issuing a tacit command (signified by conduct as opposed to express commands which are spoken or written).<ref>''Ibid'' at 48.</ref> These customary rules which are turned into legal rules by judges become tacit commands that are permitted by the sovereign legislature, “the state which is able to abolish, permits its ministers (judges) to enforce them: and it, therefore, signifies its pleasure, by that its voluntary acquiescence, “that they shall serve as a law to the governed.”<ref>''Ibid'' at 48.</ref> <br />
== Application to Geffen v. Goodman Estates ==<br />
<br />
Judge made law (common law) is actually no law at all, and can be easily overruled by legislation. However, as long as the sovereign accepts the common law - it will continue to act like law. While the judges in the case of ''Geffen v Goodman Estates'' are not trying to create new common law, Austin would likely reject the presumption of undue influence as valid law because it lacks his three requirements as discussed above.<br />
<br />
==References==<br />
{{Reflist}}</div>Kruhlakj13https://kumu.tru.ca/index.php?title=Course:Law3020/2014WT1/Group_L/Natural_Law&diff=3434Course:Law3020/2014WT1/Group L/Natural Law2014-03-25T17:54:36Z<p>Kruhlakj13: /* Traditional Natural Law */</p>
<hr />
<div>== Traditional Natural Law ==<br />
The traditional theory of natural law is grounded in the idea that legitimate and valid laws come from a higher, non-human source. This higher power is immutable and does not change over time. Humanity’s role is to exercise their power of reason to ascertain the true laws and to implement them into societies.<br />
[[File:Benozzo Gozzoli 004a.jpg|thumbnail|St. Thomas Aquinas|frame|250x300px]]<br />
Natural law is deeply connected with the idea of morality. In order for a law to be legitimate, it must be implemented by humans in a way which is aimed at establishing morality in society. Since natural law is seen as coming from a higher source, everyone who follows and complies with the implementation of such law is equal in the eyes of said law.<br />
<br />
== St. Thomas Aquinas Theory on Natural Law ==<br />
St. Thomas Aquinas was a prominent natural law philosopher. He saw legitimate law as eternal or god-made law that had passed through human minds and properly turned into rules to govern mankind. He emphasized that humans are not passive transcribers of natural law and that the truths delivered to societies are a product of human rational and reasoning. Thomas Aquinas also believed that God made humans rational and allowed them to be inclined to want the common good, because what is good for society is good for God.<br />
<br />
== Four Elements of Natural Law and Application to Geffen v Goodman Estates ==<br />
For a law to be valid according to St. Thomas Aquinas, it must possess four essential elements to achieve its main objective of morality. If all four of the elements below are not present, the law is illegitimate and must not be followed.<br />
<br />
=== The Common Good ===<br />
The purpose of the law must be to achieve what is beneficial for the common good. Valid laws are laws that promote a stable and moral community. If the ultimate consequence of a particular regulation would not to lead to a common good, then Aquinas would find it no law at all. <br />
<br /><br />
<br />
Aquinas might find that the presumption of undue influence enhances the common good by limiting domination and manipulation of a weaker group, whereby apparent consent is vitiated due to the nature of the relationship. Aquinas recognizes that humans can behave irrationally, and it is the role of judges to address written law when it is unjust. Thus allowing for common law principles to address and minimize injustices is necessary for the common good to benefit. Additionally, the common good can benefit when sanctions are imposed on those for engaging in immoral behaviour, like that of undue influence. However, Aquinas may criticize the presumption of undue influence for diluting pure reason because it is very fact dependent and not generally applicable.<br />
<br /><br />
<br />
Alternatively, a critique of this presumption may assert that it is not necessarily for the common good, and is only for the protection of a subset of individuals who are in essence a minority. Those who take others at their word based on their position may invite the consequences associated with lack of personal inclination to determine the facts.<br />
<br />
=== Law Must Follow Practical Reason ===<br />
The proposed law needs to be a rational step towards maximizing the common good and must clearly demonstrate how to achieve that step.<br /><br />
<br />
Aquinas would agree that by reviewing both the nature of the relationship and transaction make for a reasonable process that will benefit the common good by protecting minority groups and fostering a stable economic and social environment.<br />
<br />
=== Must be Made by a Valid Lawmaker ===<br />
Thomas Aquinas proposed that a valid lawmaker is a ruler within a community who holds his position by reason of natural order; chosen by God for his capacity to understand, rationalize and transmit God’s law into society where it can be implemented and followed.<br />
<br /><br />
<br />
Aquinas might criticize the presumption of undue influence because it is a common law creation, made by the ruling of judges on specific individual scenarios. Aquinas believes judges, being human, have potential to be swayed by the emotions they experience at trial. Ideally, law should be created by a centralized authority, by lawmakers that have been given their power by God. Therefore, any common law has a high potential to be no law at all because it is created based on specific facts by an invalid authority, therefore diluting pure reason.<br />
<br /><br />
<br />
Given there is no written law in the legislative sense on undue influence, the judge is not necessarily bound to follow it. Thus there is no contradiction of the natural right, meaning there is no reason not to follow it.<br />
<br />
=== Law Must be Promulgated ===<br />
Lastly, for a law to be legitimate it must be written and known. The purpose of law is to compel obedience, which leads to the common good. For society to be able to demonstrate obedience to the law, they must be aware of what the laws are. <br />
<br /><br />
<br />
While common law may not be valid law, it meets the requirement of being written. The principle of undue influence is enshrined in the common law and is available to all. The presumption of undue influence presented in ''Geffen v. Goodman Estates'' is clear and established. <br />
<br /><br />
<br />
However, this is a common law doctrine, and therefore created via judicial decision making, the argument could be made this is not written in the sense that it is not legislated and passed into law in a democratic format akin to other legislation. Though it may be written as a decision in case law, it is not as easily accessible to those with no legal background. It is far easier to access a statute or bylaw.</div>Kruhlakj13