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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
Three functions of law
1. Establishment and maintenance of order in society 2. Promotion of justice and fairness 3. Response to and promotion of social change
26
Rule of law means
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
27
Legal realism
Courts/judges are influenced by their attitudes and external context in which disputes take place.
28
Critical Legal Studies (CLS)
- 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
29
Critical race theory
- race as a social construct rather than a biological reality - an activist approach to promoting social change
30
Feminist legal scholars Critical feminists Liberal feminists
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
31
New Instatutionalism
a theory that focuses on developing a sociological view of institutions — the way they interact and the way they affect society
32
International law Domestic law
Rules that govern relationship bw states or people. No enformemt Domestic law: rules made in a sovereign state for given territory
33
Public law Private law
Public law directly involves government Private law governs relationships between people
34
A civil suit A criminal suit
Civil suit: dispute bw private parties Criminal suit: violation of gov. Penal laws
35
Two dominant systems of law | StartsWith “C”
Civil law and Common law
36
Civil law system
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
Common law system
- Judge made law - precedent~ judicial decision - un codified rules and regulations
38
Precedent in common law system
Precedent: court decision that provides authority in dealing with similar cases. Provides stability and predictablility
39
Define obiter dicta
Reasoning in judicial opinion that is unnecessary to resolve case (is not considered precedent)
40
The Adversary System Civil vs common law
Civil law is INQUISITORIAL (Judge has examining role in case) Common law is ADVERSARIAL ( parties are responsible for finding/presenting evidence)
41
Does canada have common law or civil law system????
Canada has common law system BUT In Quebec; both Common&Civil Law Civil-private law Common- public law
42
Chtonic legal traditions
Practiced by indigenous communities Based on oral communication rather than written norms
43
Sources of Law in Canada
1. Legislature (body of written rules) | 2. Case law ( body of judicial decisions)
44
Statutes:
Statutes: regulations for subject area
45
Subordinate legislature:
Subordinate legislature: law passed by Other gov. Bodies
46
Precedent Binding precedent Stare decisis Persuasive precedents
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
Whats parliamentary supremacy?
If common law and statute conflict, statute prevails
48
Islamic law
Shar’ia law | Based on Qur’an
49
Two dominant legal systems
Civil law | Common law
50
Canada’s legal system is.. | 2
Pluralist and adversarial
51
Fuction of courts
Resolve disputes Interpret legislation Overseeing administrative decision making Reviewing constitutionality of gov laws
52
Structure of canadian judicial system Sections
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
Integrated judicial federalism
Section 96 courts Shared courts, special case Administered by provinces, judges appointed&paid by federal gov
54
Main concept Jurisdiction
Responsibility of the courts | -power of a court to decide a dispute
55
3 types of jurisdiction
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
Trial and appellate courts Differences
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
Section 92 provincial courts
Subject matter jurisdiction (courts limited to particular issues) Less complicated cases, but they handle MANY
58
Section 96 provincial courts : superior
Provincial administration, federal appointment Provincial territorial jurisdiction Both trial and appellate jurisdictions Handle SERIOUS issues, criminal/civil law
59
Section 101 federal courts
Unlimited territorial jurisdiction Both Original(first in hearing and deciding case) and appellate jurisdiction Federal courts: limited jurisdiction
60
Supreme court of canada: | Jurisdiction
Unlimited jurisdiction in subject matter
61
FUNDAMENTAL FEATURES OF JUDICIAL SYSTEM IN CANADA
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
How could one characterize first decade of the Supreme Court of Canada existence?
Not useful bc it was not highest authority Followed west minister model- judicial review was not priority Low quality expertise
63
Constitution
Set of binding laws and principles that regulate exercise of political power
64
Constitutional design
features of constitution (form basis of political system)
65
Separation of powers
Responsibilities between levels of gov. Responsibility between branches of gov.
66
Constitutionalism
A limited government, supremacy of constitution Rather than parliament Constraints power of democratic government
67
CONSTITUTIONAL FORMS | 3types
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
Function of constitution Rules that make up constitution deal with two sets of relations
- relationship bw citizens and state | - relationship bw different parts of state
69
PARLIAMENTARY SOVEREIGNTY
Doctrine(concept) that grants legislature power to make/overturn any law and permits no veto or judicial review
70
Define normative
a standard for evaluating or making judgments about behavior or outcomes
71
Judicial Review and Democracy Plus side? Down side?
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
Adjudicative model of judging
When a neutral judge decides a case
73
Adjudicative model of judging is being challenged by: | 2
1. Problem solving- policy making models of judging (The changing judicial process) 2. Alternative Dispute Resolution ADR process(mediation, arbitration) (Outside judicial process)
74
4 key components of judicial process
1. Access to courts 2. The role of judging and number of party’s 3. Fact-finding 4. Mode of reasoning
75
Access to courts (4)
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
Changing roles of judges in Canada Civil vs Criminal
Civil: toward more active judicial participation in resolution of cases Criminal: restrain from actively resolving disputes before trial
77
What are specialized courts?
Problem solving courts or “therapeutic” courts Emphasis on treatment and support rather than incarceration
78
Therapeutic Jurisprudence
A study of the laws impact on emotional and psychological well-being of a human
79
Three stages of disputing process
1. Grievence( preconflict stage) 2. Conflict stage 3. Dispute stage
80
Primary resolution processes:
Alternative dispute resolution ADR Negotiation Mediation Arbitration Adjudication- courts
81
ADR
``` Various ways of resolving disputes outside of court litigation process Ex. Negotiation Mediation Arbitration ```
82
Negotiation (ADR) (3) types:
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
Mediation 3 models:
A third party (mediator) is involved Providing structure to the process -encourage parties, build trust, identify common ground, etc Models: Facilitative Evaluative Transformative
84
Arbitration
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
When is ADR not appropriate????
Where dispute is about interpretation of law
86
Restorative Justice
Not traditionally considered a part of ADR Some similarities ( participation process and restoring relationships.) Most commonly implemented in criminal justice context.
87
3 Major forms of Restorative Justice
- victim-offender mediation - group conferencing - sentencing circles

Law And Politics Midterm Exam (1 decks)

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