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Law And Politics Midterm Exam > Law And Politics Midterm Exam > Flashcards

Law And Politics Midterm Exam Flashcards

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1
Q

Political Science

A

Process of making decisions and the consequences of the decision making process

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2
Q

Law

A

Is a body of rules enacted by public officials in a legitimate manner and backed by the force of the state

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3
Q

Politics is about….

A

Who gets what, when and how

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4
Q

Types of political regimes (explain each) (3)

A

Totalitarian: single-party rule, restricted pluralism and participation, oppressive police, state-controlled media and monopoly over political, economic and military power.
(Very little freedom)

Authoritarian - power in the hands of few, economy&media under significant control, little pluralism
(Some freedom)

Democratic - rule by the people and a government that is accountable to the people. Based on principles of; popular sovereignty, rule of law, pluralism, respect for rights of minority, constitutionalism and accountability of public officials

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5
Q

Types of political systems

3

A

Parliamentary
Presidential
Mixed system

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6
Q

West Ministry Model of Parliamentary Democracy

Parliamentary Sovereignty

Prime Minister

Cabinet

The Fusion of Executive and Legislative Power

A

The supreme authority of a legislature -PARLIAMENT- and the accountability of its elected representatives

Parliamentary Sovereignty: the doctrine that gives legislature power to make/overturn any law and permits no veto or judicial review

PM: answerable to legislature, may be dismissed by it

Cabinet: -executive branch; collective responsibility

Fusion of legislative/executive power:
When same people operate both legislative & executive power

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7
Q

CANADIAN Political System

A
  • a variation of west minister -type of parliamentary democracy
  • the Constitutional government based on a federal and parliamentary structure
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8
Q

Federal form of gov. Vs. Parliamentary system

A

Federal gov: divisions of power between levels of government

Parliamentary system: 
1. A split executive: 
Governer General& lieutenants 
= formal executive
PM, premiers
= political executive
2. Fusion of executive&legislative power 
3. Regularly held preliminary election
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9
Q

REPRESENTATIVE DEMOCRACY

Chambers

  • Define Majority gov
  • Define Minority gov.
  • Define Confidence(in terms of gov.)
A

Representative democracy: rule by the people through elected representatives

We vote for ppl to represent us in H.O.C(lower chamber of Parliament) 
The senate (the Upper Chamber) is not democratic chamber -members are appointed by gov. General (on advice of PM)

Majority gov: political party wins more than half seats in H.O.C

Minority gov: political party forms a government with less than half seats in HOC

Confidence: ability of gov. To command majority support in Parliament;

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10
Q

CONSTITUTIONAL DEMOCRACY

A

Governed by a set of laws

  • laws of constitution, most important
  • rule of law, No One is Above The Law
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11
Q

FOUNDING PRINCIPLES

-Constitution act 1867 (BNA Act)

A
  1. Responsible government:
    Ministers are responsible to government
  2. Federalism:
    Separation of power bw central gov and subnational govs
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12
Q

The constitution act 1982 added what 2 new Principles??

A
  1. A set of constitutionally protected rights + the recognition of Aboriginal rights
  2. Judiciary has a limited power of judicial review
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13
Q

Executive, Legislative and Judiciary

A

Executive branch: decision-making branch

Legislative branch: law-making branch

Judicial branch: the courts and judges, where the laws are applied

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14
Q

Courts and federalism

A

Courts are divided into federal and provincial lines. Relationship between their power is often controversial.

  • supreme court of canada can declare ANY law unconstitutional
  • supreme court of canada has ruled on distribution of power bw Ottawa and provinces
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15
Q

The judicial branch in Canada

Define Judicial Independence

A

-courts are able to counteract axecutive&legislative abuses of power

Judicial Independence: lack of political control over the courts by any outside body, including branches of government
-legal immunity of judges from consequences of decisions

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16
Q

Canadian gov is organized along two axes:

A

Levels of gov:
Federal & Provincial

Branches of gov:
Executive, Legislative and Judicial

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17
Q

What is an Interest group?
Whats their goal?

How are they similar & different from political party’s

A

Interest groups are a group people with the same interests

Their goal is to influence public policy through different public-making processes.

  1. Interest articulation & interest aggregation
    - They’re both an organized group of people working toward a specific goal
  2. Don’t run for office/ stand in election
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18
Q

Types of interest groups:

A

Economic
Equality
Environment
Government

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19
Q

The dynamics between branches of government.

How might parliament respond to a constitutional review of the law? (3)

A
  • pass a new law, which takes the courts decision into consideration
  • take no action

Or

  • enact a new law that effectively overrides the judicial decision in question.
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20
Q

Explain Judicial-legislative Dialogue (3)

A

It is a conversation in search of a law that balances various objectives

Judicial decision provides guidance to legislature

New laws or regulations could be seen as a result of input from both legislative and judicial branches

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21
Q

Government Accountability:

What interactions between various elements of canadian political system help promote government accountability?

A
  • Regular elections
  • Legislature can keep executive accountable through principle of RESPONSIBLE GOVERNMENT and Daily question period, and debates
  • constitution, rule of law
  • judiciary has power to review legislative and executive decisions (ensure accordance w constitution)
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22
Q

Natural law theory

A

Laws must be morally permissible

Focuses on consistency of laws with higher moral values

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23
Q

Legal “positivists”

A

They separate what the law “is” and what the law “should be “

Focuses on whether a law was enacted by proper authority and procedure

Law has internal logic, NO external standards like morals

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24
Q

The SOURCE of law

A

A set of rules created by a sovereign through legitimate procedures

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25
Q

Three functions of law

A
  1. Establishment and maintenance of order in society
  2. Promotion of justice and fairness
  3. Response to and promotion of social change
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26
Q

Rule of law means

A

Rules are enacted by public officials in a legitimate manner and backed by state.

Every person equal before the law

No one is above the law

Law is publicly accessible

Law is applied by fair / impartial judges

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27
Q

Legal realism

A

Courts/judges are influenced by their attitudes and external context in which disputes take place.

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28
Q

Critical Legal Studies (CLS)

A
  • attention to racial and wealth inequalities+ their impact on law
  • accept influence of political/social/economic factors on laws
  • law favours politically/economically/socially powerful
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29
Q

Critical race theory

A
  • race as a social construct rather than a biological reality
  • an activist approach to promoting social change
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30
Q

Feminist legal scholars

Critical feminists

Liberal feminists

A

Apply insights to relationship bw gender, politics and law

Critical feminists: law and courts biased toward men and reinforce traditional gender roles and inequalities

Liberal feminists: equal treatment of sexes by law: change laws, train more woman judges to change situation

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31
Q

New Instatutionalism

A

a theory that focuses on developing a sociological view of institutions — the way they interact and the way they affect society

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32
Q

International law

Domestic law

A

Rules that govern relationship bw states or people. No enformemt

Domestic law: rules made in a sovereign state for given territory

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33
Q

Public law

Private law

A

Public law directly involves government

Private law governs relationships between people

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34
Q

A civil suit

A criminal suit

A

Civil suit: dispute bw private parties

Criminal suit: violation of gov. Penal laws

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35
Q

Two dominant systems of law

StartsWith “C”

A

Civil law and Common law

36
Q

Civil law system

A

Aka roman law

Code: compilation of laws

  • express rules as general principle
  • provides answers for all disputes
  • judges don’t always dominate court hearing
  • juries not generally used
37
Q

Common law system

A
  • Judge made law
  • precedent~ judicial decision
  • un codified rules and regulations
38
Q

Precedent in common law system

A

Precedent: court decision that provides authority in dealing with similar cases.

Provides stability and predictablility

39
Q

Define obiter dicta

A

Reasoning in judicial opinion that is unnecessary to resolve case (is not considered precedent)

40
Q

The Adversary System

Civil vs common law

A

Civil law is INQUISITORIAL (Judge has examining role in case)

Common law is ADVERSARIAL ( parties are responsible for finding/presenting evidence)

41
Q

Does canada have common law or civil law system????

A

Canada has common law system
BUT

In Quebec; both Common&Civil Law
Civil-private law
Common- public law

42
Q

Chtonic legal traditions

A

Practiced by indigenous communities

Based on oral communication rather than written norms

43
Q

Sources of Law in Canada

A
  1. Legislature (body of written rules)

2. Case law ( body of judicial decisions)

44
Q

Statutes:

A

Statutes: regulations for subject area

45
Q

Subordinate legislature:

A

Subordinate legislature: law passed by Other gov. Bodies

46
Q

Precedent
Binding precedent
Stare decisis
Persuasive precedents

A

Precedent- past authoritative decisions

Binding precedent- must be followed

Stare decisis- “stand by decided matters”

Persuasive precedents- do not have to be followed, may be taken into account

47
Q

Whats parliamentary supremacy?

A

If common law and statute conflict, statute prevails

48
Q

Islamic law

A

Shar’ia law

Based on Qur’an

49
Q

Two dominant legal systems

A

Civil law

Common law

50
Q

Canada’s legal system is..

2

A

Pluralist and adversarial

51
Q

Fuction of courts

A

Resolve disputes

Interpret legislation

Overseeing administrative decision making

Reviewing constitutionality of gov laws

52
Q

Structure of canadian judicial system

Sections

A

Both federal, provincial and territorial govs pass laws

Relationship is NOT simple

Section 92 courts : purely provincial
Section 101 courts : purely federal
Section 96 courts : “provincial”
Shared responsibility bw national& provincial gov

53
Q

Integrated judicial federalism

A

Section 96 courts

Shared courts, special case

Administered by provinces, judges appointed&paid by federal gov

54
Q

Main concept

Jurisdiction

A

Responsibility of the courts

-power of a court to decide a dispute

55
Q

3 types of jurisdiction

A

Geographical jurisdiction :
Area where courts can hear disputes

Subject matter jurisdiction :
When courts are limited to cases dealing with particular issue

Hierarchical Jurisdiction :
Courts differ in functions and responsibility
(Trial/appeal court)

     Original jurisdiction: courts ability to be first hearing/deciding a case

      Appellate jurisdiction : court power to review cases
56
Q

Trial and appellate courts

Differences

A

Appelate court
ensures law correctly applied
-no witness, no trial or juries

THE PRINCIPLE DIFFERENCE
trial centres on determining facts
Appeal focuses on correctly interpreting the law

57
Q

Section 92 provincial courts

A

Subject matter jurisdiction (courts limited to particular issues)

Less complicated cases, but they handle MANY

58
Q

Section 96 provincial courts : superior

A

Provincial administration, federal appointment

Provincial territorial jurisdiction
Both trial and appellate jurisdictions

Handle SERIOUS issues, criminal/civil law

59
Q

Section 101 federal courts

A

Unlimited territorial jurisdiction
Both Original(first in hearing and deciding case)
and appellate jurisdiction

Federal courts: limited jurisdiction

60
Q

Supreme court of canada:

Jurisdiction

A

Unlimited jurisdiction in subject matter

61
Q

FUNDAMENTAL FEATURES OF JUDICIAL SYSTEM IN CANADA

A
  1. Federal but unified court system:
    - provincial courts can rule on federal laws
    - SCOC unlimited Jurisdiction over Both federal/provincial law
  2. Hierarchical organized system:
    - system of increased authority from lowest to highest appeal
  3. Different courts with different yet overlapping functions:
    - fact finding trials
    - Legal interpretation at appellate level
  4. Multiple legal systems and bodies of law
    - laws created by provincial/national legislature
    - statutes created by legislatures
    - regulations created by government
  5. Judges possess high degree of discretion by design- control over the issues before them
62
Q

How could one characterize first decade of the Supreme Court of Canada existence?

A

Not useful bc it was not highest authority

Followed west minister model- judicial review was not priority

Low quality expertise

63
Q

Constitution

A

Set of binding laws and principles that regulate exercise of political power

64
Q

Constitutional design

A

features of constitution (form basis of political system)

65
Q

Separation of powers

A

Responsibilities between levels of gov.

Responsibility between branches of gov.

66
Q

Constitutionalism

A

A limited government, supremacy of constitution Rather than parliament

Constraints power of democratic government

67
Q

CONSTITUTIONAL FORMS

3types

A

Type 1. Absolutist:
Absolute power of those who govern; no popular sovereignty or rights, no separation of power

Type 2 Legislative Supremacy:
Unwritten, no procedure to amend, legitimacy derived from election

Type 3 The “higher law” constitution (“good”)
Elects representatives, constitution constrains public authority, establishes judicial enforcement and defines how it may be revised

68
Q

Function of constitution

Rules that make up constitution deal with two sets of relations

A
  • relationship bw citizens and state

- relationship bw different parts of state

69
Q

PARLIAMENTARY SOVEREIGNTY

A

Doctrine(concept) that grants legislature power to make/overturn any law and permits no veto or judicial review

70
Q

Define normative

A

a standard for evaluating or making judgments about behavior or outcomes

71
Q

Judicial Review and Democracy

Plus side?
Down side?

A

Judges can interpret the law, therefore affect the law

“Legislating from the bench”
“ judicial activism”
- removes major issues from PUBLIC DEBATE

Plus side: defend rights
Down side: infer rights that should be determined democratically

72
Q

Adjudicative model of judging

A

When a neutral judge decides a case

73
Q

Adjudicative model of judging is being challenged by:

2

A
  1. Problem solving- policy making models of judging
    (The changing judicial process)
  2. Alternative Dispute Resolution ADR process(mediation, arbitration)
    (Outside judicial process)
74
Q

4 key components of judicial process

A
  1. Access to courts
  2. The role of judging and number of party’s
  3. Fact-finding
  4. Mode of reasoning
75
Q

Access to courts (4)

A
  1. Relaxed rule of standing(easier to challenge laws)
  2. Moot cases- no longer “live”
  3. Doctrine of ripeness- concerned with time to develop factual basis
  4. Political question doctrine, more opportunities for courts to become involved in lawmaking/policy making
76
Q

Changing roles of judges in Canada

Civil vs
Criminal

A

Civil: toward more active judicial participation in resolution of cases

Criminal: restrain from actively resolving disputes before trial

77
Q

What are specialized courts?

A

Problem solving courts or “therapeutic” courts

Emphasis on treatment and support rather than incarceration

78
Q

Therapeutic Jurisprudence

A

A study of the laws impact on emotional and psychological well-being of a human

79
Q

Three stages of disputing process

A
  1. Grievence( preconflict stage)
  2. Conflict stage
  3. Dispute stage
80
Q

Primary resolution processes:

A

Alternative dispute resolution ADR
Negotiation
Mediation
Arbitration

Adjudication- courts

81
Q

ADR

A 
Various ways of resolving disputes outside of court litigation process
Ex. 
Negotiation
Mediation
Arbitration
82
Q

Negotiation (ADR)

(3) types:

A

Two party’s without neutral third party
Dispute directly to each other in attempt to resolve.

Adversarial negotiation: one party gains, the other must lose

Compromise Bargaining: reciprocal tradeoffs bw both parties

Interest-based Bargaining: win-win opportunity

83
Q

Mediation

3 models:

A

A third party (mediator) is involved

Providing structure to the process
-encourage parties, build trust, identify common ground, etc

Models:
Facilitative
Evaluative
Transformative

84
Q

Arbitration

A

Parties agree to submit resolution to Impartial third party (arbitrator) and abide by their decision

Hearing is held, evidence/ arguments are produced

Legal procedures are applied

An arbitrators final decision is Binding on parties and has similar effect to a court judgment

85
Q

When is ADR not appropriate????

A

Where dispute is about interpretation of law

86
Q

Restorative Justice

A

Not traditionally considered a part of ADR

Some similarities ( participation process and restoring relationships.)

Most commonly implemented in criminal justice context.

87
Q

3 Major forms of Restorative Justice

A
  • victim-offender mediation
  • group conferencing
  • sentencing circles

Law And Politics Midterm Exam (1 decks)

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