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POLS 3120 - Week 1 - Wednesday January 8th 2014.docx

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University of Guelph
Political Science
POLS 3130
Dennis Baker

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 the case)  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 constitutional law)  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. Basic Definitions • 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. Judicial Process • “Judges as neutral adjudicators of disputes applying law to facts” is much more complicated than first appears. • 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 Branch • 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
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