POLS*3130- Law, Politics and the Judicial Process
Prof. Dennis Baker
Search tool needed for class : Lawsource
1. Definitions and Types of Law
Attorney General v. Bedford (2013)
• Politics or law?
o It was already legal, living off the avails of prostitution was illegal
• Constitution > Statute > Common Law
• Judicial Hierarchy – OSCJ-OCA-SCC
• Revisiting the Prostitution Reference (1990)
o Stare Decisis ( let the decision stand ) but… paras 38,44
o Areference case is submitted directly by the provincial government to the courts
o The constitution has not changed, it the way judges interpret them- that is different
• Social and Legislative facts- entwined with expert evidence, no different levels of deference
• The decision: “failures of instrumental rationality” ( Hamish Stewart).
First thing to know about cases - adversarial, there is always two sides
Interveners – apply to have a say in the case yet don’t have a consequence for the result of the case
There is a hierarchy of courts
Not all cases are unanimous – sometimes judged decent and sometimes they concur
They can write their own, they can concur with another judge ( I agree with this end result, even
though we ended up at a different reasoning ) or they can decent ( I don’t agree with the outcome of
There is also a majority – when more then 5 agree
Common law (judge made, judges acting on their own) Statute law ( the government of the day,
always trumps common law), Constitutional law ( every statue and common law must conform to the
Political science has attitudeism – many say that you can come to any result from simple justifying it,
throw away existing laws
Law and Politics
• Magna Carta (1215), s. 39, rule per legem terrae (‘according to the law of the land’). The ‘Rule of Law’
is a fundamental tenet of Canadian government.
• The judicial process is at the centre of the tensions inherent in self-government. – we all have our own
views but its actually about how I can impose my views and opinions on others
• What does self governing mean?
o Sometimes you vote and the person you vote for doesn’t win
o Then another government is making the rules
o Its hard to say that im self governing when I don’t agree with the laws being created
o This is why there are limits imposed in the political process- how far the law is able to go
• What role do the Courts play? How does law interact with politics? How do legal actors (and the legal
process) differ from political actors (and the poltiical process)?
• Politics is bound by law…
o Primacy of legal norms.- politics are one thing but should be trumpet by the law
o Constitutional supremacy. o (Legal rules can be inhibiting ‘argument’-stoppers; must be careful about law-politics interface).
• but law is shaped by politics (and occurs in a political context)…
o Statutory law.
o Politics of judicial appointments.
o Judicial decision-making can be political.
• David Easton: Politics = ‘the authoritative allocation of values’
• Law is… (very contested).
• Basic “positivist” definition has four elements…
1. Body of rules…
2. enacted and applied by public officials…
3. formulated by legitimate means…
4. and backed by state force.
•+ Role for Natural Law ?
o Fuller: prospective, precise and “like cases treated alike” = Rule of Law
o Dworkin: underlying moral principles.
If you want to have a law, you better treat humans as dignified creatures
Judicial Process (in theory)
• Core of the judicial process is dispute resolution. – When citizens disagree it’s the judges that solve them
• Courts are one method of resolving disputes (coercive).
• Courts adjudicate disputes by applying the law to the facts of the dispute.
• Accepted by both parties because Court is impartial.
• “Judges as neutral adjudicators of disputes applying law to facts” is much more complicated than first
• Role of the judge (adjudicator vs. mediator).
• Fact finding (determining “truth” and “historical” facts vs. “social” facts).
• Rule interpreters or rule makers?
• What is a “dispute”?
o Standing, mootness, intervenors, “political questions.”
• Judicial system is a branch of government- in other words, judges make authoritative allocations of values.
• Many issues surrounding the courts have political implications. For example:
– how are judges selected?
– how easy is it for interest groups to take a case to court?
– how much independence should judges have from politicians (salaries, etc.) ?
– how do judges make decisions?
– how are judges held accountable?
– how involved should the courts be in mak