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Lecture

Week of September 16, 3NN6

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Department
Political Science
Course
POLSCI 3NN6
Professor
Greg Flynn
Semester
Fall

Description
September 16-17, 2013 Political Science 3NN6 Public Law S EPTEMBER 16, 2013 P UBLIC L AW – T HEORIES OF THE S TATE 1. Formation of Constitutions 2. Hobbes (British Influence on constitution) a. State of Nature and Equality of Men i. Abstract theoretical sense, not based on a reality per say ii. Initial premise comes from; 1. All persons are equal; acknowledges in his writing that some people are faster; stronger; etc. That some advantages will balance out with the advantages of others; 2. Opportunity and likelihood of competition; if two people want the same thing; then they will compete for it. The order of society will break down and will lead to a state of constant war; in the absence of a common power, people will exist in a state of war; competition. They will continue to do so because it is the right of nature; people get to use their power for self-preservation; iii. “In the absence of a common power, life is continual fear and danger of death and the life of man is solitary, short, brutish and short..” iv. Natural order of things; predicated on the idea that people are free to do what they want to ensure their own preservation; v. Out of Chaos came order; vi. People will be inclined to seek peace and to avoid the continuous fear of death vii. As a result of this inclination people would seek alliances with others; and by doing so (aligning themselves with other people) they would ultimately gain liberty, in the state of nature they’re free to do whatever they want. viii. Being part of a society and being controlled by Government enhances your liberty. b. Formation of Social Contract i. Formation of a society, where people transfer their right to an absolute liberty in exchange for the protection that is provided by society; give up their right to self-preservation; or to enhance their self preservation in exchange to not having to defend themselves all of their time; c. Necessity of Sovereign and Law d. People will fail to living to these agreements; e. Collective; all of us agreeing to live in a particular fashion; we give up the right to self governance and self preservation in exchange for all others doing the same and that we are in agreement of doing this; f. Sovereign is the embodiment of our collective will; i. Once the sovereign has been establishing individuals cannot descend. ii. The sovereign speaks as the collective will and is therefore the voice g. Limits on Sovereign i. Because we have the right of self-preservation; ii. The sovereign cannot intrude upon self-preservation iii. Cannot force us to confess to a crime; h. Idea of liberty and enhancement of liberty being the reason behind the formation of the state; People will participate because this enhances their own liberty; 3. Locke 1 September 16-17, 2013 Political Science 3NN6 Public Law a. State of Nature and Liberty of Men (opposite of Hobbes) i. Limited government to ensure liberty; ii. Limitations on power; particularly to seize power; iii. Concern over the protection of property; iv. Locke begins with the idea of state of nature; in contrast to Hobbes that it will not be a state of war; v. Individuals bound to the law of nature; to do no harm to others; vi. Inherent natural law; not to do harm to others; (What is considered “harm?”) vii. Peaceful coexistence isn’t’ likely to last; inherent right not to do harms to others or to self; and the right to punish those who would interfere viii. Reaction of Crown seizing property; b. Formation of State/ Government c. Limits on Government i. Where the government infringes upon these limitations and threads on the limits of individuals; not only do people have the right to rebel against a government in this context, but an obligation to do so; d. Law is not clear; i. Difficulty; is further exacerbated that there is no independent source to suggest whether in fact this is a transgression; ii. State of war, state of competition; period of conflict between individuals; e. Two levels of government i. ONE THAT MAKES LAWS & ii. ONE THAT IS IN CHARGE OF ADMINISTRATING of law; iii. You can limit the potential for the abuse of power; iv. Subordination of executive to the legislative; those who administer the law are about to those that make the law; v. Law must apply equally to all persons; That the law must not be arbitrary or oppressive; that the legislature must not raise taxes without the consent of the people. 1. REF to taxation without representation; 2. Concern about the ability of state to seize property; vi. That the two must not pass each other power; 4. Mill a. Basic principles of Liberty b. Formation of Representative c. Government LIBERTY Public law system is predicated on a single value:  Liberty  Personal Freedom  Overall view is a concern of government intrusion upon that liberty;  How is our public law system designed to ensure the greatest liberty on behalf of our citizens?  British Constitution is unwritten; developed through practice, developed through time and through conventions;  Representative government was in place; there are a series of historical events that pushed us into confederation; raids from the US, trade from the UK, regional tensions that existed between Canadian colonies. 2 September 16-17, 2013 Political Science 3NN6 Public Law  Formation of constitutions; ignore ideological underpinnings that flow from events; ideological underpinnings to the Canadian constitution; pre-conceived notions play out in terms of Hobbes and Locke from a theoretical perspectives; echoes in both; P UBLIC L AW – S EPTEMBER 17, 2013 Liberty is the value that underlies our public law system; relationship between the government and us H OBBES  Government is needed in order to protect liberty;  Entity has to be there with authority  Not the ultimate kind of freedom where we are free to do whatever we want;  Government is necessary, we need one in order to actualize our liberty; limited government or else it will intrude upon this liberty; L OCKE  State of nature where people have a natural right to liberty  Absolute liberty based on the principle that they do no harms to others  Predicated on ownership and possession of property;  Do not take property from someone else; o What is considered property? o Anything that you can exert your labor upon; intellectual property;  State of nature will lead to some type of conflict;  Locke suggest that individuals moving into societ
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