Class Test 1 POLI 342

Question 1

Feudal System

Answer 1

• Wealth = land. Laws protect land and therefore wealth production.
• GB conquer New France during 7 years war
• New France, land divided between the sons. Wealth gets smaller. Land inheritance laws shape society. (little innovation, never move away, protect land, difference between farmers small but equal)

Question 2

English Land Laws

Answer 2

• Male primogeniture: oldest surviving son gets the whole estate. Second son army/navy and third son clergy.
• Societal impact: need wars to employ/feed the army. send clergy to evangelize
• First son innovates and improves.
• Inequality, need laws to be incorporated in to an institution.
• System of laws that accepts the wealth you have and keeps the pie the same v.s allows for wealth creation

Question 3

GodFather Lecture

Answer 3

-Bonasera’s daughter was attacked. Asking Don Vito for a hit on those responsible
-“I believe in America, America made my fortune”. In opposition to Sicilly (one of the poorest parts of Italy at the time).
-Don Vito is upset that Bonasera abandons the old ways and goes to the police. Context of 1945, never justice for Italians, they are new immigrants, Catholic Irish run the police force.
America: modern, procedural, impersonal, free and individualistic, the law
Little Sicily: traditional, familial/friendship, personal, obligations, honour/vendetta
-Laws are always under threat (freedom and modernity are too). Fine balance with community, family, honour

Question 4

Today’s Risk to the Law

Answer 4

Authoritarianism

• Hong Kong threatened to be absorbed back in to the ‘rule of men’
• At the end of Opium War, China gave up HK to the British who imported the rule of law.
• Protests triggered by the threat to habeas corpus- appear in front of judge explain why holding you. Right against arbitrary detention. Extradition Bill as representative of deeper fear

Question 5

Origin of Rule of Law

Answer 5

• Rule of law, democracy and free markets
• John Locke 17th c. Britain:
• religious tolerance just emerging, cuiis regio, eius regio- your ruler is your religion.
• England revolts to install Protestant Monarchy 1688 Glorious Revolution
• Divine right of kings?
• Regime must protect natural rights of citizens. rights rae universal and independent of government..
• Government exists to secure natural rights, protect or be overthrown.
• Constitutionalism- limits on gvt

Question 6

Declaration of Independence

Answer 6

• Best statement of Locke’s ideas
• Jefferson, Adams and others.
• Inalienable rights with a government to secure these rights
• Citizens right to revolt
• Colonies already existed as communities, but needed to be codified
• Doesn’t set up system of government—those are set out in the Articles of Confederation which ends up floping because ineffective, can’t govern

Question 7

Declaration v.s Constitution

Answer 7

Declaration:
principles of government
objectives
short and easy to read
Life Liberty Pursuit of Happiness
Constitution: 
Drafter later
Principles and objectives put in to practice

Question 8

Dicey Law of the Constitution

Answer 8

-Parliamentary supremacy
-Codifier of the rule of law
-Study of the law of the constitution
-
1. no punishment except by violation established in ordinary court
2. equality before the law
3. emerge from case law/common law
Question is- how do you have parliamentary supremacy and rights

Question 9

Current Examples of Discretion and the Rule of Law

Answer 9

Climate Change: which government has the right to respond? not listed in division of powers
Carbon tax
What is Pez?
Candy or toy, different import tariffs. Deputy Minister of Revenue says Candy, Regal Confections appeals, listed as other toys.

Question 10

Court

Answer 10

-dispute that needs resolving. third party- triadic dispute resolution
-courts not natural, emerge over time
-Starts as:
1. voluntary, consent,
2. flexible
3. go between or more formal
Courts:
1. emerge over time
2. not voluntary
3. run by state. imposition of third party

Question 11

Shift From TDR to Courts

Answer 11

• mutual consent to law and offices means that parties suspected bias, the interests of the state are injected, no longer working from local assumptions and rules
• appeals un natural, move away from local, leads to urbanization and centralization

Question 12

English Courts

Answer 12

• 1066 arbitrary start date in the age of Norman Kings (+/- 100 years)
• oral, adversarial, local and within a single team
• royal, quick but fair. “King’s Justice”
• In competition to midieval, semi formal.

Question 13

Early Confederation in Canada

Answer 13

• Courts common, judges and lawyers were rare
• Magistrates and justice of peace were common (part time, volunteers, police chief
• Handling cases up to 6 months in prison, fines or minor debts using local knowledge
• Great for social control and surveillance

Question 14

Confederation

Answer 14

• challenge at confed to :
  create successful parliament and federal government
  secure provincial legislatures and governments
  protect natural rights
  ensure that Canada is strong
  since there would be provinces how organize the courts
  no welfare state so need court- order property and dispute resolution

Question 15

Canada US Comparison

Answer 15

US:
preserves states in the 1787. Colonies were well established by time constitution was drafted. courts well established as well. let congress create other fed courts to operate parallel
CAD
create and preserve provinces and courts but superior high court judges are appointed and paid by Ottawa
criminal and procedural law also Ottawa jurisdiction
Ottawa can create other courts included a general court of appeal
Until then go to Judicial Committee of Privy Council in London

Question 16

Superior Courts In Canada @ Confed

Answer 16

• Staffed by judges, more formal, handle serious offences and civil cases. Inferior courts justice of peace, police magistrate court
• Core of judicial system
• criminal cases with more than 6 months in prison
• with more at stake, fairness a bigger issue

Question 17

Drummond Case

Answer 17

• fired a pellet gun in her vagina, pellet in child’s brain but he survived after birth.
• not attempted murder because no child did not die and no legal status within the womb

Question 18

Chaoulli Case

Answer 18

government policy limit private health care unconstitutional bc violate right to life liberty and security of the person
split decision

Question 19

Politics Definitions

Answer 19

Laswell: who gets what, when and how. making decisions regarding the distribution of resources
Easton: authoritative allocation of values
Processes surrounding the making of decisions and the outcomes of that processs

Question 20

Law Definitions

Answer 20

Classical natural law: Augustine, laws have to be morally valid. ‘unjust law is no law at all’
Neoclassical Natural Law: laws evaluated by whether they advance human good and prosperity. if fails to advance then not fully obliged to follow
Dworkin: judges make decisions based on principles found in legal tradition and moral principles in community institutions
Legal Positivism: HLA Hart what the law is vs what it ought to be. should be viewed as a set of rules created by a sovereign through a recognized set of procedures
1. body of rules distinct from customs/conventions
2. enacted and applied by public officials. domain of government actors
3. enacted in a legit manner.
4. backed by the force of the state
Lon Fuller add that must include element of procedural element of justice

All together form the rule of law.

Question 21

Rule of Law

Answer 21

law is body of rules enacted and applied by public officials in a legit manner and backed by the force of the state. every person equal before the law including government officials. it must be made publicly accessible and cannot be enforced retroactively. applied fair and impartially.

Question 22

Common v.s Civil Law

Answer 22

Civil Law
-Corpus Juris Civilis, Oman Emporor Justinian.
-Deductive reasoning
-Codes, judges apply legal principles in the codes
Common Law
-inductive reasoning
-Henry II England
-Based on previous decisions which set precedent.
-Common law courts and equity courts, later combined
-common law rules can be codified in legislation

Question 23

Judicial Process

Answer 23

• mediator- assists
• arbitrator- impose a solution which can be binding or non binding
• courts: binding decision, coercion and less choice in third party

Question 24

New Institutionalist Approach

Answer 24

1. laws product of political and socio economic forces. constitutive bc can privilege certain groups
2. judicial decision making is influenced by formal and informal rules of courts and the relationships of the courts with other level of gvt
3. courts important role in governing process

Question 25

Fundamental Features of Judicial System Illustrated by Marshal Case

Answer 25

1. federal but unified court system. SCC unlimited jurisdiction, provincial courts can rule on federal laws
2. hierarchies of couerts
3. primarily different but overlapping function among different courts
4. multiple legal systems and bodies of law (statutes passed by legislative branch and regulations created by exec branch)
5. high degree of judicial discretion

Question 26

Section 92 Courts

Answer 26

• Trial courts, courts of first instance. High volume of litigation
• Initially known as magistrates or police courts. could hear about child protected, deserted wives and spousal abuse.
• Judicialized between 1960’s and 1980’s
• Have equal constitutional status, dual sovereignty
• All provincial and municipal offences, all preliminary inquiries
• Original jurisdiction over all summary offences, least serious indictable
• willing shift of judicial jurisdiction from federal government
• Young offenders
• Family law no including divorce
• Civil law (less than 25000 in AB)
• Justices of the peace, do not require background in law, cheaper and flexible solution

Question 27

Section 96 Courts

Answer 27

Provincial Courts
-Blend provincial administration with federal appointment
-Partisan orientation of the judiciary most influenced by appointments
-Consistent with centralizing provisions of 1867 constitution
-Superior courts already existed in BNAmerica, dealt with most serious issues and appellate jurisdiction
-territorial jurisdiction, trial and appeal courts, references
-any legal issue (topic)
McEvoy reference case to decide hypothetical sistution where all indictable to S.92 in NB. Decision S.96 can’t be stripped of core jurisdiction.
-Serious offences must be tried in 96: murder, treason, gvt intimidation, piracy
-Family law- marriage and divorce
-Civil cases large sums of money
-Review of admin tribunals
-Appeals and trial courts

Question 28

Administrative Tribunals and Section 96 Courts

Answer 28

• Admin tribunals threat to S96 jurisdiction
• test for the creation of a tribunal for it to be constitutionally permissible
• cannot be judicial : adjudicate a dispute through the application of a recognized body of rules
• subject matter cannot be one that was decided exclusively by another court at confederation
• sole and central function not adjudication. can be part of a wider regulatory system.

Question 29

Second Treatise John Locke

Answer 29

• Enter in to society to enjoy property in peace and safety
• establishment of legislative power as the first and fundamental natural law
  1. govern by established laws, not discretionary or biased
  2. designed for no other end ultimately but the good of the people
  3. must not raise taxes on property of the people without consent given by themselves or their deputies
  4. cannot transfer power of making laws from legislative body to any where else other than where the people put it.

Question 30

Thomas Jefferson Declaration of Independence

Answer 30

• all men created equal but endowed with inalienable rights
• consent of the governed, right of people to abolish it or alter it when there are abuses and uspurations
• right and duty to overthrow

Question 31

Rule of Law A.V Dicey

Answer 31

Two features of political institution in England since Norman conquest:

1. undisputed supremacy of the central government. passed from King to Parliament
2. rule of law as opposed to arbitrary power. equality before the law, no exemptions, formula for expressing the fact that law of the constitution is the result of the rights of the individual and ordinary law of the land
   - right to personal freedom, discussion, public meeing, marital law, taxation etc

Question 32

Judicial Mandates

Answer 32

Interpretive Mandate: all courts.
Incompatibility: rights compatible interpretation of the law. can issue explicit statements of incompatibility
Invalidation: authority to strike down and invalidate laws. withstands legislative majorities

Question 33

Post Liberal Constitution

Answer 33

Traditional liberal constitutionalism: protect society from the state. later on, application of liberty, equality and due process on institutions regardless of their connection to the state.
-Early Charter traditional, judges increasingly willing to apply the Charter to institutions beyond the state. Charter norms in to society.
-Post Liberal Constitutionalism: criticizes traditional as right wing ideology. advocate for application to civil society, private can be conversion in to constitutional, need not wait for public policy to catch up. doctrine of inaction and underinclusivity.
State action does not trigger a charter review in the case of s15
-Section 32 reworded from “all matters within authority of government” allay fears that it would apply to civil institutions
-Charter values apply to private disputes even though charter rightsa my not.

Question 34

Judicial Committee of Privy Council

Answer 34

Final court of appeal in London even after the creation of SCC in 1875
Appeals from SCC and from Court of Appeal in each Province (per saltum)
JCPC decisions reduced authority of the federal gvt, expand provincial authority
1949— SCC highest court of appeal

Question 35

Laskin Final Appellate Courts

Answer 35

• SCC has no constitutional basis
• Many options but chose unitary because:
  1. involves federal and provincial matters
  2. common law is largely the same in all the provinces outside of QC. ought to have uniform operation
  3. many important branches of law fall within exclusive federal competence
  4. speak authoritatively for all of Canada