2nd Half Flashcards
Ses. 16-17
What are the different approaches to the rule of law that Dworkin distinguishes?
Rule of law:
- political idea/tool regarding the application of law upon citizens
Rule-book/formalistic approach:
- Predictability and generality of law
- Law should be applied mechanically from a “rule book”
- No ethical/political consideration
Substantive approach:
- Recognition of moral and political principles behind law and judicial decisions
- Look beyond the law’s text, see its values
- Dworkin’s perspective
Challenge to distinction:
- Forces you to pick a side
Ses. 16-17
Explain Lon Fuller’s approach to the rule of law.
- “Inner/inherent morality of law” (you can have a rule-book approach while still looking at the substantive elements)
- For law to be effective it must be coherent, predictable, and consistent (King Rex had to scrap code because people did not understand it)
- Law should be made known to the public, not be retroactive, and avoid being contradictory (King Rex had to scrap second code because it was contradictory)
- No need to pick a side, rejects everybody, debate about law and morality was misleading, law is inherently moral
- Bond of reciprocity
Ses. 16-17
Explain Joseph Raz’s approach to the rule of law. What type of perspective did he offer?
- “Authority of law”
- Legal rules/legal systems should have understandability, stability, generality, judicial independence, due process, judicial review
- Questions of justice are separate and should be treated independently
- Checklist is more narrow and concrete than Bingham
- Positivist, rule book approach
Ses. 16-17
Explain Tom Bingham’s approach to the rule of law. What type of perspective did he offer?
Several sub-rules
- Resolution done legally without discretion
- Equality before the law
- Protection of fundamental rights
- Accessible means of resolving civil disputes
- Reasonable exercise of government power
Connected to rights-based approach, thick theory, whatever he thought was cool is in concept, not to be achieved but to be worked towards
Criticized for being ambitious (Raz)
Ses. 16-17
Explain Hayek’s approach to the rule of law. What type of perspective did he offer?
- Libertarian, cared about predictability and equality
- Rule of law should aim at putting limits to central planners (legislators) and protecting economic rights
- Bottom-up approach/perspective, legislators do not decide, people decide
- Both rights-based (people decide) and rule book (predictable)
Ses. 16-17
How does Dworkin’s legal theory influence our perspective on the rule of law? How would he solve the Riggs v. Palmer case?
- Legal decisions should be made in accordance with values beyond literal text of legal system
- Would solve the case by looking at the moral principles of justice and fairness involved with it
Ses. 16-17
Explain the Riggs v. Palmer case, compare the majority opinion with the minority decision, identify the tool of interpretation that judges used, and connect this case with the rule of law approaches discussed in class.
Context:
- Palmer poisoned and killed grandfather to get his estate via will
- Riggs (daughter of Palmer’s grandfather) sued
- Can a criminal benefit from a crime?
Decisions & Rationale:
- Majority said criminal should not benefit from a crime, wrongdoer should not benefit from wrongdoing annulling Palmer’s inheritance, justify lack of civil codes because killing a person you’re inheriting from is too obvious to regulate
- Dissent said rules should be followed strictly and that there are no statutes that provide for the annulment of Palmer’s inheritance, mention lack of civil codes as incapability to regulate
- Rule book approach v. Substantive approach
Implications:
- Criminal law: Palmer convicted of murder
- Family law: Separate consequence, basis of case, is he entitlted to receive inheritance?
Ses. 16-17
What is the difference between the rule of law and the rule by law?
Rule of law:
- All individuals (gov. included) are to follow the law
- Law should be clear and equally applied
Rule by law:
- Law as tool/instrument of political power, gives sense of legitimacy to corrupt decisions, helps attract investors, useful to prosecute opposition
- Authoritarian regimes use it to control citizens and preserve power
Ses. 16-17
Explain how indicators measure the rule of law, why are they useful, the type of approach they use and the objections that can be raised.
- Assess rule of law by legal certainty, absence of corruption, effective enforcement, and access to justice
- Useful to evaluate strength of legal system and whether or not rule of law is upheld
- Work better respective to approach
- Gathered through interviews
- Objections raise doubts of subjectiveness and limitations of quantifying and oversimplyfing complex legal system
Ses. 18-19
Explain the doctrine of separation of powers, its historical context, and its influence in the American and French revolutions.
- Division of government authority and responsibility into distinct branches to “protect citizens”
- Roots in work of Montesquieu (Executive [Civil & International], Legislative, and Judicial) during Enlightenment, Locke also advocated for separating executive and legislative, no judiciary
- Americans accepted theory but introduced reformations, France is more complex for they had a bunch of different governments, eventually accepted it
- Functional (what each branch does), institutional (where each branch works), personal (people limited tp each branch)
Ses. 18-19
How did the Americans use the separation of powers doctrine?
- Madison, Federalist 51 (auxilliary precautions, people cannot be the only check on government, pessimistic view of human nature [impeachment, judicial appointments, presidential veto, judicial review])
- Still three branches
- Paved way for checks and balances
- All incorporated into Constitution
Ses. 18-19
How has the separation of powers doctrine evolved, and why some may argue that it is obsolete?
- Evolved as political systems have developed and changed
- Obsolete because modern governance is becoming increasingly complex and political, better for institutions to be independent (new branches [electoral commision, central banks, constitutional court]) or to have checks and balances.
- Political parties did not exist at time of Montesquieu and American writers (separation of parties, not power)
- Montesquieu trinity theory advanced for his time and outdated for our time (sees U.K as ideal example when it does not clearly separate power [difficult to identify s.o.p in parliamentary regime] there needs to be more branches or ability for branches to interfere with each other)
Ses. 18-19
What does the separation of powers doctrine say about the existence and justification of constitutional courts and judicial review? (Distinguish the different versions)
- Helpful because it justifies judicial review, branches interacting with each other
- Looking at it in a purely republican sense, no branch can directly interfere with the others’ actions, thus, unjustified, cannot have judicial review
Ses. 18-19
Explain the presidential regime and its main risks.
- One head
- Election by people, voters, sometiems Electoral College
- Dismissed by new elections
- Clear separation of executive and legislative (cabinet cannot sit in legislative)
- Executive cannot dissolve legislative
- Dual system of legitimacy (government and people)
Risks:
- Executive overreach
- Gridlock between branches
- Can lead to populism and government disfunction
Ses. 18-19
Explain the parliamentary regime and its main risks.
- Two heads (ex: PM and head of state [monarch])
- Election by parliament
- Dismissed by vote of no confidence/resignation
- Executive can dissolve legislative
- Combination of executive and legislative (cabinet can sit in legislative, PM is majority leader of parliament)
- Non-dual system of legitimacy (just government)
Risks:
- Too elitist
- Detached from the people (PM is partisan leader and not people’s leader)
- Hard to form government, especially in multiparty regimes
Ses. 18-19
Explain the differences between the parliamentary and presidential systems. Which one is superior?
- Interdependence/Independence of executive and legislative
- Parliamentary is more adaptable and conducive to consensus-building
- Presidential is more predictable and holds more accountability (Linz argues it is worse because it is more susceptible to gridlock [interbranch conflict] and has no vote of confidence can lead to populism)
Ses 18-19
Explain how the different branches of government collaborate or check each other in the different political regimes
Presidential:
- Executive can veto legislative and manage judicial appointments, accountable to people, protected tenure
- Legislative can impeach executive and sometimes approve judicial appointments
- Judicial can determine constitutionality of the actions of other branches
Parliamentary:
- Executive is accountable to parliament via vote of no confidence
