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Lecture 1 - definitions and types of law

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Political Science
POLS 3130
Dennis Baker

Lecture 1 – Definitions and Types of Law Law source • Interveners: all interested parties that have applied to say something • Do not quote from the head notes of cases (summary) only use it to understand what the case is about • Case begins when the paragraphs are numbered • Need to write all judges actions and decisions for the assignments Attorney General v. Bedford • Constitution > statute > common law • Charter section 7 and section 1 • Judicial hierarchy: OSCJ – OCA – SCC • Revisiting the Prostitution Reference 1990 - Stare decisis: let the decision stand/use the same decision • Social and legislative facts-entwined with expert evidence, no different levels of deference • The decision: “failures of instrumental rationality” • Can’t make a common law about prostitution since there is already a statute however they use the constitution to make sure everything is right with the original statute • Changing social values calls for amendments to the statutes/legislations • Opinions and perceptions of prostitution changed, there’s more thought to the dangers of the workers • Legal doctrines have changed over time section 7 has changed throughout time ***immediate invalidity of the current laws regarding prostitution would leave it a mess and totally unregulated from the government, there’s a possibility of danger to the public and imperil to the rule of law (the abrupt unregulation of prosititution, not many countries leave it ike that) Law & Politics • Magna Carta (1215) s 39, rule per legem terrae (according to the law of the land) is a fundamental tenet of Canadian government -even the king had to abide by laws • The judicial process is at the centre of the tensions inherent in self-government -it is about the extent that you can impose your own opinion onto others • Politics is bound by law: -primacy of legal norms: legal norms are shaped by politics through the introduction of statutes -constitutional supremacy: legal rules can be inhibiting ‘argument’ stoppers, must be careful about law politics interface, too much constitutionality limits/imposes the introduction of beneficial policies Basic Definitions • David Easton: politics = the authoritative allocation of values • Law is very contested • Basic positivist definition has four elements 1. Body of rules, rule of recognition 2. Enacted and applied public officials 3. Formulated by legitimate means 4. Backed by state force • Role of natural law -Fuller: prospective, precise and “like cases treated alike” = rule of law -Dworkin: underlying moral principles, valuing individuals as dignified people Judicial Process • Core of the judicial process is dispute resolution • 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 -they have no stake to either party winning the trial proceedings • “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? 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 -how do judges make decisions -how are judges held accountable -how involved should the courts be in making decisions about controversial policy issues -should provinces and the federal government have separate systems of courts as they do in the US System of Law • Civil law: continental Europe, Asia, Quebec and Scotland -civil law allows the judge to be the main inquisition -judge can do as he sees fit in order to obtain the full truth • Common law: UK, Canada, British colonies Distinguishing the Two Systems Common Law Civil Law Sources of Law
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