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Ligma > CH 15 JOBBY > Flashcards

CH 15 JOBBY Flashcards

CHOBBY

1
Q

2 sides to liberal democracy

A

Popular sovereinty- democracy side

Respect for freedoms and entitlements- liberal side

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2
Q

How does tyranny of majority occur and what is it

A

No respect for rights

A pure democratic system with few checks on the power of the elected government

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3
Q

How does a Democratic Tyranny occur

A

When a majority of the population agrees with discrimination against an unpopular minority

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4
Q

Visible vs invisible minorities

A

Those whose physical features, language or features make them easy to identify and subject to discrimination more often then invisible minorities

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5
Q

What is the risk of majority rule and popular sovereignty

A

Discrimination against minority groups

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6
Q

Human Rights

A

are universal claims to certain freedoms and to certain entitlements which ensure dignity, equality, respect and the ability to make genuine choices about ones own life

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7
Q

How were negative rights created

A

During the enlightenement period liberal thinkers thought of rights as an individual freedom from interference by the state or government.

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8
Q

Creation of personal sphere

A

the rights liberal thinkers considered natural to all human beings were those that created a personal sphere

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9
Q

What happens in a personal sphere

A

citizens freedoms would be guaranteed against their own government and own people

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10
Q

Liberalism

A

The notion that thr public sphere should be as small as possible to ensure the private sphere is maximized

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11
Q

Negative rights

A

Rights that oblidge a government and everyone else to take no action against another person that takes away their life, liberty or quest to live their life their way

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12
Q

eg of negative rights

A

Right to life: Ensures freedom from anyone including government killing or injuring you

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13
Q

Limit to negative rights

A

The only limit to these rights is the point at which one person’s enjoyment of his freedoms interferes with another persons enjoyment of theirs

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14
Q

How to identify this limit

A

Through the HARM principle

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15
Q

Harm principle

A

you can live your life as you please as long as you dont harm anyones life, liberty or pursuit of happiness

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16
Q

Pure liberalism and government

A

Sees the role of government limited to creating laws that prevent people harming each others rights and create conditions to see these rights flourish

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17
Q

Small government (i.e liberalism)

A

Apart from maintaining defence forces, setting up a court system and making laws the government should basically stay out of everyones way

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18
Q

Modern societies and negative rights

A

Regard negative rights to be insuffecient by themselves and people need access to things like education

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19
Q

Positive rights

A

Oblidge a government to take action so that everyones entitlement rights are met

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20
Q

Eg of positive rights

A

Health, oblidges the government to provide a minimum standard of universal health care

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21
Q

Liberalism in modern society

A

Provision of positve rights cannot rely on a take no action approach as government is the only body with enough law making power to provide these rights

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22
Q

Bigger government (i.e progressive)

A

Parties like the greens attitudes to rights are based on positive rights which they argue are needed for societal progress and thus require bigger government

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23
Q

3 types of rights (chronologically)

A

First second and third generation

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24
Q

First

A

emerged during the enlightenment period and are identical to negative rights

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25
Q

second

A

emerged in the 20th century as western societies became wealthier and are identical to positve rights

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26
Q

3rd

A

Have only recently emerged and include thing suchg as native title rights

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27
Q

Conflicting rights

A

3rd generational rights are contraversial because they conflict with other rights

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28
Q

Eg of conflicting rights

A

Some cultural practcies such as female genital mutilation are in strong conflict with the first generation rights of the girls

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29
Q

6 classifications of human rights

A

Civil, political, legal, economic, cultural, social

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30
Q

Civil rights

A

Aimed at protecting people from discrimination and empowering them to live full lives within their communities

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31
Q

eg of 2 civil rights

A

freedom speech and association

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32
Q

Political rights

A

Pol rights empower people to participate in the government of their country

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33
Q

eg of 2 pol rights

A

right to vote and right to run for political office

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34
Q

Economic rights

A

Are entitlements to a minimum standard of living that ensure a persons material needs are met

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35
Q

eg of 2 economic rights

A

rights to own property and work

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36
Q

Social rights

A

Are those which enable a person to develop and live their life in the way of their choosing

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37
Q

2 eg of social rights

A

freedom to choose marriage partner and have a family

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38
Q

Cultural rights

A

Apply to specific cultural groups based on ethnicity, religion or status designed to allow people to practice their cultural traditions

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39
Q

Legal rights + eg

A

Apply to those accused to those accused of wrongdoing and subject to civil or criminal proceeding eg: right to silence

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40
Q

4 principles of human rights

A

Universal
Interdependent
Indivisble
Inalienable

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41
Q

Universal

A

They apply to all regardlemss of race ethnicity, religion, wealth etc

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42
Q

Interdependent

A

Refers to the fact that you cant have some without the others

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43
Q

Indivisible

A

Rights cannot be ranked in order of importance

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44
Q

Inalienable

A

You cannot separate a person from his or her human rights

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45
Q

4 different types of rights protection

A

Superior law
Ordianry law
International law
Bill of rights

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46
Q

Where and what types of rights are protected in superior law

A

Constitutions- contain civil and pol rights

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47
Q

Rights in superior law

A

Are very safe because of their alteration method making it hard to change

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48
Q

Another classification of rights in superior law

A

Implied: Rights created through HC interpreting the constitution
Express: Rights codified in written law

49
Q

3 advs of superior law protection

A

Alteration method
Judicary
Implied rights

50
Q

Alteration method adv superior

A

Difficulty to change con makes rights in the constitution very safe, which means gov policy cannot infringe on con rights

51
Q

Judiciary adv superior

A

The judiciary is empowered to interpret the constitution which means the judiciary can abolish laws which conflict with con rights.

52
Q

Why does the judiciary protect rights

A

because of their independence and history of protecting rights

53
Q

Implied rights superior adv

A

Judges can also discover implied rights thus keeping them up to date with social values

54
Q

discovering implied rights

A

requires an activist approach which is often contraversial

55
Q

3 disadvs to superior law protection

A

Need to evolve
Listing
Judicial supremisism

56
Q

Need to evolve disadv superior

A

The fact the rights are evolving and adapting means that they often need to be changed, which cannot easily be done in constitutional law.

57
Q

Listing disadv superior

A

Rights that are placed in a constitution are often listed, and lists by their nature exhaustive. Rights that are left out are thus deemed less important and are less protected.

58
Q

Judicial suprem disad superior

A

Judicial supremacism is also a concern of some, that constitutional law gives too much power to unelected judges when striking down legislation

59
Q

Why is statute law good in terms of rights protection

A

Created by elected parliament that is sovereign and represents the will of the people

60
Q

Laws based on parliamentarian principle

A

Are designed to create a dialogue between parliament and the court and not put judges in the drivers seat for human rights

61
Q

Who is bound by statute law

A

Statute law binds governments and courts

62
Q

3 advs of statute law protection

A

Conform
Flexibility
Interpretation

63
Q

Conform statute adv

A

Statute law compels the judiciary and the public service to conform with selected rights

64
Q

Flexibility statute adv

A

A parliament can pass and amend statutes at will, which allows them to be flexible and alter rights as they seem fit to meet changing standards

65
Q

Interpretaion statute adv

A

Statutes are interpreted by the independent courts, which ensures that they are applied fairly to a range of different situations.

66
Q

3 disads of statute law protection

A

Ammended
Listing
Judiciary

67
Q

Ammended disadv statute

A

Statutory laws can be changed or removed by different Parliaments, which means that rights can easily be suspended or diminishe

68
Q

Listing disadv statute

A

Rights in statutory laws are listed, which encounters problems with exhaustive lists

69
Q

Judiciary disadv statute

A

Interpreted by an unelected judicary

70
Q

Common law

A

Is judge-made law. It is made in courts via the doctrine of precedent and is inferior to statute law

71
Q

Laws in common law and eg

A

Legal rights eg right to silence

72
Q

Who is bound by common law

A

Bind all lower courts, does not bind parliaments and only bind government if they are a party to a particular case

73
Q

2 ADVS OF COMMON LAW PROTECTION

A

Flexibility

History of judicary

74
Q

Flexibility adv common law

A

the most flexible way to protect rights as they can evolve on a case by case basis and can be overridden by Parliament at any time

75
Q

History of judicary advo common law

A

Common law rights are engrained in the history of the judiciary, they evolved over time to protect those within the legal system and the judiciary has a strong history of developing and upholding these rights.

76
Q

1 disadvantage of common law

A

Vulnerability of common law rights to parliament

77
Q

Executive dominated parliaments and common law rights

A

Are particularly prone to temptations to override common law rights in populist pressure for tough on crime policies

78
Q

Effect of exec dominance on common law rights

A

Suspend or infringe upon certain rights in order to better deal with criminals or terrorists

79
Q

International Law

A

Is law made between nations or international organisations

80
Q

Who is bound by international law

A

Can influence domestic law only if aus parliament agree to adopt it

81
Q

1 adv of international law protection

A

International rights promote the adoption of uniform rights across the whole world, and allow Australia to boost its international standing as a protector and promoter of rights

82
Q

1 disadv of international law protection

A

International law is by itself weightless, since it cannot be enforced. When it is ratified in Parliament it is introduced as part of statutory law

83
Q

what can ratification sometimes mean

A

only parts of a specific right or sets of rights are made law

84
Q

Security council

A

Body of 15 nation 5 of whom are permenant with the other 10 on 2 year rotations

85
Q

5 permenant members of SC

A

USA, Russia, China, France and Britain

86
Q

What can the SC do

A

Make resolutions authorising the UN to take action to prevent human rights abuses and end conflicts

87
Q

UN Human Rights council

A

membership of 47 countries and is a forum for promoting human rights

88
Q

Office of the High Commissioner of Human rights

A

appoints expert investigators to travel to places where human rights abuses may be occurring and investigate them

89
Q

What does the OHCHR do

A

Allows the UN to highlight human rights abuses and bring pressure to bear on those nations committing them

90
Q

Flaw on UN and its agencies

A

Cannot directly intervene in the affairs of soveriegn nation states

91
Q

2 interbational courts which have a role in HR

A

International court of justice

International Criminal court

92
Q

International Criminal Court

A

Has a focus on human rights and has achieved convictions of national leaders found guilty of human rights abuses and crimes against humanity

93
Q

4 Steps to becoming domestic law

A

Agreements
Nations sign up
Ratify Agreement
Adminstrate and enforce statute lae

94
Q

Agreements

A

UN member states negotiate agreements on human rights

95
Q

Nations sign up

A

Executive arm of gov signs these laws and are international law but not domestic law yet

96
Q

eg of aus signing agreement

A

1965 The convention on the elimination of all forms of racial discrimination

97
Q

Ratification

A

The rights in the international law must be codified into the statutes of the signatory country

98
Q

Explain ratification process

A

Statutes go through normal legislative process and external affairs power gives CMWTH power to make these laws

99
Q

Administering and enforcing

A

Parliament may set up a special agency to adminster the law who investigate human rights violations

100
Q

EG of AUS Process

A

CERD created by member nations
CERD Signed
CERD ratifed through RDA 1975
RDA administered by Aus HR commission

101
Q

Expanding powers through ratifying

A

Through ratifying an agreement in an area not already covered by a exclusive or concurrent power it gives CMWTH more law making power

102
Q

Bill of rights

A

focus exclusively and specifically on rights helping to raise awareness

103
Q

Types of BOR

A

can be statutory or constitutional

104
Q

Australia and BOR

A

Only true liberal democracy not to have a BOR at a national level

105
Q

Principles that affect the type Of BOR

A

Parliamentarianism

Judicial Supremacism

106
Q

Judicial Suprem and BOR

A

A bill of rights ca grant the judiciary the power to strike down laws which are incompatible with it, putting the judicary in the ultimate position of power

107
Q

Con BOR and Jud Suprem

A

Will always empower a countrys con court with the power to strike down inconsistent laws eg USA BOR

108
Q

Statutory BOR and Jud Suprem

A

Can also empower the judicary to strike down laws if the bor is constructed to give this power to the courts

109
Q

Parliamentary gov based countries

A

Take the view that the parliament must remain sovereign and aupreme and never be subject to to the will of the judges

110
Q

What is Parliamentarism based around

A

The peoples own parliament is the best protector of the peoples rights because the people would not allow their own legislature to abuse them

111
Q

Constrained parliamentarianism

A

is the result of the rise of exec dominance weakening the power of the legislature

112
Q

What is CP

A

solution to being able to keep the exec in check while preserving the leading role of parliament as guarantor of rights

113
Q

How to constrain parliaments

A

achieved by a declaratory bill of rights to highlight other laws in breach of human rights

114
Q

what does a declaratory do

A

creates a public dialogue through judicial review between parliament and judiciary which helps to constrain parliament

115
Q

Parliamentarinism

A

Assigning the ultimate power over tights to the legislature. Based on the principle that the people would not suppress their own rights

116
Q

who uses parliamentarian ism

A

Britain and AUS

117
Q

Judicial Supremacism

A

Assigning the ultimate power over rights to the judicary as it is immune from influence by leg and exec

118
Q

Why choose JS

A

impartiality and independence makes it the best guarantor of rights

119
Q

Acting as an alternative to Parliamentarinism

A

Legislature represents a majority of the will of the people but what if a majority chooses to supress the rights of certain minorities

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