Chapter 8 Flashcards
What does “Law-boundedness” or “law-bounded state” mean?
ruler’s decisions written down (codified for the sake of consistency of application) and published to limit the use of power and to provide predictability in public affairs
The “western model” is best symbolized not by the mass plebiscite but the impartial judge
What is the role of the state in legislation?
I. Western conception that law is what the state says it is (“What is not created or recognized as law by the state is not law”)
II. State has a monopoly on the legislative activity
III. Secularism - state takes legislative precedence over religious authority (competing sources of rule-making authority)
What is the role of law?
I. Almost all states have legislatures (law-making bodies)
II. Law determines criminal behaviour, punishments for criminals, and provide impartial rules for binding adjudication of disputes
III. Everyone in society is expected to obey the law, is considered equal before it and disputes under law are heard by fair and impartial judges (flexibility/is it the reality? Movie above the law; governments are bound by their own rules, and that no one - not even political leaders - are above the law)
IV. Central element to democratic government & an essential element of good governance
What are the conditions for just law?
General in scope Public Prospective rather than retroactive Clear Consistent Relatively constant Capable of being obeyed Enforced as written
How can a legal system restraint/keep checks on the power of the executive?
Courts must be independent of the state so that judges can determine the merits of legal case despite political implications
What are the two uses of a constitution?
I. Denotes the overall structure of a state’s political system; the political culture of a state
II. A specific document that outlines the basic institutions of the state, the procedures for changing them, and the basic rights and obligations of the citizens (House of Commons, Charter of Rights)
Both structure the polity by establishing the boundaries of political action
What are the only three western states that don’t have a formal constitution?
UK, New Zealand, Israel
When did The Canadian Charter of Rights and Freedoms come into effect and what changed?
1982; Canada no longer had to ask for Britain royalty to make changes to its constitution
What are the limits to the regulatory power of the constitution?
Written constitution can make legitimate patterns of behaviour more transparent and regularized. However, no single written document can cover all of even the most fundamental elements of the political system
Custom and convention - the ways things were done is the way things are done
What is constitutionalism?
Normative outlook on the political values of a given country (the “spirit” of the constitution), or
The view that the constitution is the most fundamental principle of political life
How is a constitution changed?
I. Amending Formula
a. The constitution Act, 1982 added an amending formula to the Canadian constitution and terminated Britain’s control over amending the Constitution
(7 50 rule is problematic)
II. Constitutional change can also occur through the gradual evolution of principles and practices
a. E.g, changing role of the Governor General ater responsible government was introduced in the 19th century
b. E.g, decline in the stature of the senate
The constitution act 1982 contains four different procedures for amending the constitution (6.1 table)
check out whatever that is
Can a province opt out of a constitution amendment?
A province can opt out of any amendment that transfers powers relating to education or other cultural matters from the provincial level to the federal government
The 1982 Act did not expand the public’s opportunities in constitutional change
What are some examples of failed attempts in Canada to amend the constitution?
I. Meech lake accord
a. Controversial because it contained provisions
recognizing Quebec as a distinct society
II. Charlottetown Accord
a. Contained many of the provisions found in the
Meech Lake Accord plus a “Canada clause” listing
the basic characteristics of Canadian society (Box
6.7)
b. Recognized the right to Aboriginal self-
government
c. Included provisions on giving 25 percent of
House seats to Quebec
What is the Universal Declaration of Human Rights?
I. Spells out a broad range of political and social rights
a. In practice, there is considerable room for judicial
interpretation
II. Protects
a. Fundamental freedoms (speech, assembly, religion
& voting)
b. Mobility rights (to move & work in any province)
III. Legal rights (S.7 through 14 ~ right to life, liberty &
security)
a. Unreasonable search or seizure
b. Arbitrary detention/imprisonment
c. Cruel and unusual treatment or punishment
d. Right to counsel
e. Reasonable bail & trial
f. Protection against self-incrimination
IV. Basic rights for protecting the individual against possible abuses of state power
V. Provides equality rights (S.15)
a. Most of these in the 1960 Bill of Rights
b. Many of these fall within provincial jurisdiction
VI. Linguistic rights
a. French & English recognized as Canada’s two
official languages
b. Language protection is extended to the
educational system
VII. Includes a variety of other specific rights
What institution is responsible for the adjudication of constitutional issues?
All states have a court specifically for the adjudication of constitutional issues; can challenge governmental decisions through judicial review
a. Particularly in Canada, the US, and the UK b. Fight about money and jurisdiction
What is judicial review?
I. When judges determine whether state actions are legally permissible, e.g., in light of rights protections or the federal division of powers
a. A lot of lawyers made a lot of money after 1982
II. Words of the constitution may be reinterpreted by the courts to reflect changing times and circumstances
a. People have contested new jurisdiction
b. Things changes, interpretations of issues and legislations changes as well
What is the difference between full judicial review and limited judicial review?
I. Full judicial review
a. Interpretations of constitutionality
II. Limited judicial review
a. Based on sections of the constitution; how power
should work in different sections of the government
b. Allocation of powers in a federal system
What are judicial restraint and judicial activism?
I. Judicial restraint
a. Narrow view of their own powers of interpretation
II. Judicial activism
a. Use their powers vigorously, take a brad view &
adapt laws to changing circumstances
b. In the US, courts are extremely influential in the
life of citizens
State power can be constrained through constitutional checks and balances. What are two examples of this?
I. Threefold division of power between the executive, legislature, and judiciary
II. Can also be constrained through the establishment of a federal system
Balances power
What is the definition of federalism?
Power is divided between different authorities (two levels of government; a national or central government and a number of subnational governments) that have their own particular responsibilities
In federalism, each authority has sovereignty within its own sphere of responsibilities. What can be said about the responsibilities of the federal government and what are that of the provincial government in Canada?
I. First PM wanted to delegate little to the provincial governments; what were given to the provinces back grew
II. Both levels of government exercise legislative authority over the territorial units that make up the federation, such that neither level is subordinate to the other; today provinces are subordinate to the federal government, like duties in clothing order if not made in the US when you ship it from there in Canada. Provinces can’t do that, but Federal government can
II. Healthcare is responsibility of the provinces, NS sometimes doesn’t have all the resources to take care of all of it so it goes to the federal government to ask for funding, it’s a perpetual issue; spending power - ability of the federal government to spend; for NS is great, for Quebec it isn’t; federal government gives the funding but they decide how it’ll be spent
III. Constitutional safeguards ensure that the decisions of the member units are not overridden by a higher authority
What are some examples of countries ruled under federalism?
Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Ethiopia, Canada, United States, more on powerpoint
What are the two key federal institutions?
I. Two-chamber parliament or legislative body
II. Constitutional court
Rules on constitutionality of legislation to reassure member units
What are the two chambers of parliament/legislative body?
I. Senate
a. Upper chamber made up of representatives of the provinces or state b. Prime Minister appoints the members c. 105 (not provinces, but regions - West 24, Ontario 24, Quebec 24, Maritimes 24, Newfoundland 5, missed the last one)
II. House of Commons
Why does the senate in Canada have no legitimacy?
Because it is not elected, doesn’t perform its function the way it’s supposed to; will never be abolished in Canada because it is in the constitution (would have to get rid of the latter to get rid of the former)
