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Politics 343 January 8, 2014 lecture 1.docx

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University of Calgary
Political Science
POLI 343
Marywyatt Sindlinger

Prabhleen Brar Politics 343-01 Lecture Notes January 8, 2014 Common Law and Canadian Legal History • Pre-Norman Legal:  Roman Era: spread from Europe before the Millennium; Romans keep its routes in Europe; tribes replaced Romans in Southern England that came from Germany, which led to the Anglo-Saxon Era, which originated from the different tribes in Southern England: Angles, Saxons, Jutes, Danes; tribes are territorial based and each tribe has its own legal system, its legal system is not based on the common legal system  Laws went from un-written to written  The tribes’ laws were based on custom and practice NOT decisions or statues, etc. Emergence of the Common Law • Norman Invasion:  Feudalism  Curia Regis  Royal courts of justice  Kings peace  William wanted to unify political control over the political elites  William’s rules were based on aristocratic powers  He divided the royal courts of justice into 3 groups  One of the three groups consists of him giving land which all belonged to him (monarchy); he divides the land to aristocratic lords who then were allowed to rent out and\or divide their land further to other lords (this was called Feudalism; it created an economic foundation)  He also took another set of aristocrats called the Curia Regis (aka Kings Council) of monarchy, making them his political advisors. The Curia Regis provided advice on governance and established a royal beaucracy that created: 1. Chancery (deal with budgets; they spend money) 2. Exchequer (deal with finance; they raise money)  This beaucracy allowed William to control his political system and create new positions such as sheriffs (policing)  William wanted a single body law (unify law); in addition, he created 3 courts: 1. Court of Common Pleas:  Deals with commons  Aristocrats don’t go here  Deals with civil and land disputes 2. Court of Kings Bench: deals with criminal matters 3. Court of the Exchequer: dealt with legal matters that deal with the monarchies finances  Through these three courts he had control over pleas and had order, justice and peace Key Features of the Common Law • Development of Precedent • Stare Decisis and court hierarchy • Law, legal institutions and personnel • Rule of Law • Royal Circuit Courts of Assize judges use previous cases to determine and relate the result of the case to another to create a precedent • 1283 decisions were compiled and content of the judgement was compiled together • Precedent come into play, facts of the case have to be the same as a previous case and the laws used have to be the same or similar and if it involves new law or facts than the precedent will not be set in the case • Precedent overtime becomes binding (judges have to follow a similar cases instead of following voluntarily, this is because it has to do with the higher court hierarchy)—superior appeals courts: make decisions based on facts, the inferior courts must follow the superior courts decisions in every province • Legal decisions made of judged became “common” and began to work in a unified way • Two sources of law: laws come from legislation (|Federal and Provincial parliaments) and the courts (judges decisions –judicial) • There was no court hierarchy, then division of labour occurred (torts, contracts, criminal matters, etc. start at the bottom of the hierarchy (provincial, trial level). If there is a problem in trial you make an appeal to go into the higher court level. Stare decisions only functions in the higher hierarchy and not in the trial courts (inferior) • Common law legal system has a basic set of principles or legal doctrines that are the foundation of the content of our laws and legal knowledge as well legal training, legal institution, police function and legal functions and allows for proper legal training and gives template for how legal institutions work • Common law and legal institutions developed as a separate set of legal institutions who functions are only related to the law and personnel’s that overlap each other (legal institutions based on 3 functions: law making, adjudication (making legal decisions in cases), and administration) • Legal system is not a closed system • Legal institutions and personnel’s are a rational way of thinking that undermines legal decisions (are logical, analytical and critical not superstitious, assumptions, etc.) • Judges have become political actors, in Canada there is a separation between the personnel and legal system • Laws must apply to everyone in the same way; it comes from the magna carta which was signed 1215 between king John and his noble court , king himself must be counted to the same laws as his nobles, there were no separate set of laws that applied to the king. Law must be regular law (Judicial decision or parliamentary decisions), you cannot have arbitrary laws and they have to be administered from ordinary courts and everyone is equal under the law • Albert dicey: constitutional laws is what he called a “consequence”: result of right and what we inheritably have and the rights are what reflects the laws • Max Weber: Modern state and society are only based on rule of law over the arbitrary rule of individuals • BNA: Canada will have political and legal system similar in principle to England Development of the Canadian Legal System • Province of Quebec : in civil matters (torts contracts, marriage, divorce, property) they use the civil legal tradition and the rest of Canada uses common law • Canada has mixed legal tradition (common law with civil law) Transfer of English Common Law to • Colonialism • “Reception” of the common law • Confederation • Waning of British legal powers  The JCPAC ( Judicial Committee of the Privy Council): deal with legal matters in generally in colonial empire and it dealt with legal disputes within these colonial  Until 1949, JCPAC was the highest court, 1876-wrong supreme court of Canada came into power  No laws of legal decisions could be passed in colonies, only through JCPAC  3 circumstances in which British law was adopted: “discovery” – subsequent settlement by the British, conquered by military force, assigned over treaties  Christians were allowed to follow their legal system up until British replaced their laws with the British laws  Colonial possessions were given to raise taxes and have elected assemblies within the British empire  Date of Introduction: British laws were first applied to a colony- contrasted with the Date of Reception (any legal decisions that took place were automatically applied to the colony)  When the colonies are self-governing, we have Date of reception: colony can make their own domestic laws within the British colony; this means the British law transferred over becomes fixed in that colony than every new law made in that colony is then considered to be made from the colony itself and not the British colony as a whole. Therefore, any new laws made by the parliament of Britain, those do not apply to the colony unless it’s something like the BNA  1758 Nova Scotia and Quebec (Date of reception)  Alberta, Northwest Territories 1870 date of reception  There is no common date of reception in Canada, because of this the Constitution Act of 1867 in Canada is not a common date  Canada=British legal system  Confederation: 4 Canadian colonies brought together which divided into two parts—upper Canada: Ontario and lower Canada: Quebec and Nova Scotia –political deal arranged by the colonies  BNA passed by parliament in Britain now called Constitution Act of 1867- last parliament in Westminster that was passed  Quebec legal history is preserved in civil law  Quebec civil code separate from British law  Section 91 –legal powers of Federal government & section 92 sets out the provincial courts  Federal government took important powers and took the criminal law – only passed by the Federal parliament, there is no provincial parliament; named one of its powers defining of criminal procedure  Piece, order, good government clause –power of Federal parliament  Federal rights (powers) were over natural resources, etc.  Canada becomes self-governing dominions from a domestic point of view  Role of JCPC  1867-1949 role of JCPC was in power then in 1949 court of final appeal was taken from JCPC to Supreme Court of Canada which became into power in 18..?  1941 treaty of Westminster Parliament –possible for Britain to pass legislation at the request of dominions otherwise they have no power to pass any legislations  1947 letters patent  Newfoundland was the last province to join confederation  1982 Constitution Act -self-sustained from a political point of view –makes canada self-governing Transfer of French Civil Law to Quebec • Features of the civil law tradition • Coutume de Paris • Civil Code of Lower Canada (1866) • Quebec Civil Code (1994)  Precedent and legal decisions made by court not important in civil law because it’s all about legal codes which are civil codes which are called legislative statutes put together in one comprehensive code –states what the law is (first part of code) and the second part states the legislation and it only deals with private law and not the relation with state and society only with individual and society  Parlement-laws written in Coutume de Paris –has its own set of laws passed in parlement in coutume de paris  Laws in Paris and in coutume de paris, become part law of France  Concel Superieur-Superior Counsel-laws applied to France & Royal orginace applied to France, shaped France  1763 and 1866-laws in colony of Quebec become confused-British and Quebec laws =Confusion and have dogs reckless of laws (business law); therefore 1866 Quebec created civil code of lower Canada, code included codes of concel superieur, Napoleonic code -1808and Louisiana code- 1804, royal code, Paris laws; all of this existed until 1994 and replaced with comprehensive code-human rights, property, family rights and the current code has 10 books instead of 4 and deals with civil and international civil matters  Supreme Court of Canada Theorizing Judicial Politics • role of courts and judges in political system Studying Law and Politics: • Law is a “product” of politics (one of the principles) • Law is a “prize” of politics in democratic states; government gets to influence what society will look like. Law has to be the instrument in influencing society • Law is a means of governing in the sense of how governments govern. Ex. Constitution Act, states what the analogues powers of the state and parliaments are and sets out how power is distributed • Jurisprudence is the philosophy of law: origin of law  Relationship between political actors and the courts  Normative jurisprudence: normative foundations of law; conceptions of what society is to look like and how government constructs society (Aristotle, Plato, etc.). It’s what law was thought to be and the law needed to be based in a normative foundation; in addition, morality, the pronouncement of leaders and the construction of norms  Analytical jurisprudence: looks at law as not what it should be, must be; but the law as it actually is, how it functions, how the courts work and how in reality the legal system works. How the system functions in an analytical way.  Practical jurisprudence: looks at and studies what the decisions the courts make and judges study. Look at the legal decisions made by judges, practically. (“product” of the court)  Sociological jurisprudence: taking all the elements of the legal system and see how they all fit into the larger sociological system (economic, strategically, etc.). Actors seen as social jurisprudence; more interested in the more of courts in the social system; they are SOCIALACTORS • Trying to answer the question, what is the law?  1. What are the common features of the law are and how it functions 2. Try to understand the logic of the structure of the legal system, why is it the system functions this way? • Law as normative system: Know what distinguishes the law as a normative system (from customs and religious believe) • Legal validity: discussion about how we when a law is legitimate and when it’s not. Tell us: 1. when law is a real la& 2. Who has the authority to make valid laws? –Natural Law (if a law is not just it is not a law, so how do we know how the law is valid? In order to know this, use human reason to figure out the laws using ‘divinity.’ Today we know through legal positivism: as long as they are positive by legal authorities that have a recognized right to rule, than they are valid and to understand the laws as rules.  Commands of the sovereign were the laws; now they are a set of rules – H.L.A and Hart stated for example rule of obligations: things to do and things to not do and secondary rules—rules about the rules: how laws are made and what the proper process is to change laws and the proper process to make judicial laws. When we have set of rules then law is valid. Constitution law is an example of this. • Legal Concepts: right or duties (Constitution) of state or individual. • Proper Authority: who gets to make the laws? • Explaining the logic and rational or legal reasoning: try to figure out by looking at the decisions of the courts, so how judges make their decisions by their engagement with legalities • Constitutions, law and politics: play the foundation of legal system (“rule of the game”), looks at legal doctrines: specifically dealing with constitutional laws. Important because they are a set of principles that involves the courts and political acronyms used to create constitutional laws to create and interrupt them. Important for political legislators as well. 2 ** doctrines: 1. living tree doctrine: constitution 67 and 1982- supposed to read in vine with the times. Need to be the original copy not a copy of a copy like in Canada. The doctrines also look at intellectual history and normative underpins called framework of constitutions and its politics. It states the constitutions are political elites that act in a way to make society the way they want it to look like; what the construction of good is –reflects in CCRF. It also looks at philosophies of judges, so what legal philosophes judges have prescribed. Constitutional laws also involves figuring out their relationship with law politics and society –how the constitutional framework of society fits in with politics and its decisions and with societal change-norms, values, society’s prosperity –determined by the constitution and the living tree doctrine. With politics we talk about all of these things AND the courts/judges and other political actors and institutions that include legislators and citizens, levels of government and policy making process itself. –try’s to figure out what role each play or work together. • Judicial politics: looking at judges as political actors. Many judges would say they are not political actors but instead legal actors. From a political science point of view, judges are political actors.  Behaviour revolutions (1060’s): studying political institutions and how they work and identifying who political actors are and what they do and why. – Figure out underlying political values and why they behave as political actors –reason behind why judges function this way. Orientation judges- how they think about legislative bodies, society, etc. relative to other institutions and other political actors; particularly how they are different from legislative bodies? • Comparative and international law and courts: role in the law the courts have laws have played in transiting democracy (1980-90’s)—brought democratization in Asian countries. Transition of 1 and 2 wave was historical, political and social transition –built institutions over time. Other trend: Judicialization of politics: looks at the increasing reliance on administrative constitutional and laws –now increasingly done. Politics has become more political, more into policy making then and ...-much more regularized. Discipline in to things: 1. International explains design, operation and impact of international duals. 2. Globalization of law: spread of legalistic institutions. So the proliferation of laws amongst other corporations on a global scale. Also involves spread of legal norms; good way to legitimate behaviour, have fair trade and this is one good way the law plays a role in the international system. • Iraq: vote on the constitution (2014) The “Judicialization” of Politics • What is the judicialization of politics? –The courts and moral/political problems • The courts are involved in policy making and law decision making • 3 kinds of judicalizaiton: 1. Spread of legal discourse and procedures: law and the courts are not only used by which politics are done. The way in which we talk about politics is much more legalistic that involve legal terms than ever before. This means law can be part of policy by how we think and can do with law. 2. Expansion of the purview of the courts: before courts and judges use to be less involved now they determine through administrative review— ensure the measures by which the policy are made are done through proper procedure; judicial redrawing by eudacratic drawing  who gets to do what and how they get to do it. Lastly: rights Juris prudence: talk about asserting our rights. • Classic civil liberties: freedom expression, association, etc. respect of privacy, etc. ; equality: everyone is treated equally under the law • Apex courts • Make sure laws overcome structural inequalities and use much more commonly to assure accountability and transparency and the gov’t and institutions behave this way so people know how to behave ( this is a form of reasonable public policy) • Rise of multi-lateral institutions: ex. European Union has its own human rights charter. 3. The courts and “mega-politics”: reliance of courts and judges to deal with complex issues regarding how the courts going to look like and to combine and divide decisions? Judicialization of “Mega-Politics”: Means you see more of the courts and judges acting as political actors • Should be questioned • Not clear when we are dealing with a political issue or if we are dealing with a judicial issue and when one should be involved in them and when outside of the legal system, we should be involved • Canadian ..called: political question • Fiscal Policy: about budgets, etc. • External affairs: policy-how • Defences policy: just political matter-court deals with • Operation dismantle case: case challenged constitutionality to engage in… if case raises question and if its violated by the constitution  we will make a decision on it • Judicial scrutiny of “core” prerogatives • Corroboration of regime change • Judicial oversight of the “law of democracy” The Judicialization of “Mega Politics” • Judicial scrutiny of “core” prerogatives • Corroboration of regime change • Judicial oversight of the “law of democracy” • 1995-Chancery of Kings? • 2000 court decision made by Israelis • Constitution certification case in 2000 in South Africa • There was no legal rules under original constitution in South Africa • CCRF was like a template as to what the constitution would look like • 2004 there was a new one that came out in South Korea that regarded corruption –it was appealed by legislation to SCC (oriented the electives) • Judicial oversight involved the motor reservation and candidate, financing, advertising, party financing which were all part of the democracy • Parties have been de-certified in Belgium, because they have not been in India, etc. are democratic and the electives have been asked to step down • Superior courts are part of the superior election results • Taiwan in 2004, Republic of Georgia, Italy ,etc. –the judicial oversight has emerged into elections (they are certifying or non-certifying) • Transitional or restorative justice: corroboration of regime change authoritarian system to democratic rule. This assures your individually held responsible (usually in criminal charges on an international level. Truth and recreational stuff • Repujutive justice • Restorative: moves away from the courts way of doing things; so, restore balance in community • Restorative Truth of re-cancelation 1990s: ask for forgivenance????; get the truth out (aka amnesty; truth deal); Africa have to tell truth and if they lie than they are prosecuted and considered criminal ?? • Check republic in 1993 that all laws pass during communism • Companion court was made after war in Yugoslavia • International criminal court in 2002: Intent: assure permanent is ideal and fight crime; mean to be a court of last resort • Courts the definition of the polity • International criminal court has own statues. For crime 1. Against humanity 2. Is crime of genocide, etc. they act as a deterrent • ICC supposed to try crime of aggression probation of making of states-going to war (states can use force to defend, but cannot attack with it) • Polity: what political system looks like  Succession: don’t involve in courts only politics, warfare (UN) –they wanted to separate from Union to practice slavery  Canada only one gives decision on how to do legal disputes??? • 1998 Federal court wanted to clarify how Quebec succession worked, so SCC was to rule on the referendum –would it be a constitution? So, the fundamental political assumptions • 2012 Israeli SC-rule on whether Palestinian citizens and many other make them Palestinian? –what it means for Israel to be Jewish standing?; aftermath: nothing falls beyond judicial review so anything could be decided by court Explaining the Judicialization of Politics • Institutional features  Minimal institutional requirements  Constitutional rights  Procedures for judicial review: abstract v. concrete review • Have to have reason judiciary • Well respected apex court • Constitutional right (Bill of rights) and viable judicial • No constitutional Bill of Rights have no stable judicial politics • Abstract: a priori review: Judicial review that takes place before the law comes into effect. Some states and countries can happen example, France • Reference can be asked by federal or provincial govt. In Canada, nowhere else • Abstract because the law doesn’t exist yet • UN doesn’t have this only concrete review of law that don’t exist • Once the law is passed in Canada, Concrete review can be reviewed through litigation but in other democratic states, it can only be reviewed without litigation • Concrete (a posteriori) • UN have striated form of review • Centralization v. decentralization: decentralization is more reviewed and it is more likely courts will have an effect on public policy making. This means decisions made from bottom-up courts than different courts can speak to policy issue but if only top court is allowed to review than the policy review is limited • Standing: “requirement that one must be party to a legal dispute in order to have a case heard in court” –textbook definition  US can only have a standing if they show that they are personally affected by the decision that is to be made  When talking about standing, we are talking about people who have the capacity to enter the court process and not litigators  Have to start from the bottom-up (trail to supreme) –In Canada  Leave of appeal: appeals made- can be constitutional or not; the courts decide if they want to take the appeal or not and they can also do this with reference cases (essentially, it is a judicial political decision if they decide not to take the appeal or reference) • Judicial behaviour • Political determinants:  Macro socio-political trends  Rights discourse  Strategic action • Thesis: judges act like political actors and their behaviour is motivated the same way as political actors (judges are political actors like everyone else) • assumed judges are sensitive to public opinion (scientists believe this) • judges believe they are not sensitive, because that would compromise their decisions, but they do take public opinion into account to be re-elected as a judge in the future • Judicial conjugality: means keeping a good relationship between courts and judges alone (judicial community). This is important in courts and if there’s less interest in this, judges go on in their own way and risk having a positive relationship • Strategic consideration: how courts feel with other courts and judges; judges will involve in policy making if it enhances their reputation within the government and if it enhances their position; as well as, making sure it does not harm their position • Structural and functional positions: how politics w
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