POLS 3130 Lecture Notes - China Academy Of Launch Vehicle Technology, Social Fact, Supreme Court Act
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Law Politics and Judicial Process
1. Definitions and Types of Law
Opitz v. Wrzesnewskyj (2012)
Intersection of Law and Politics
Clash of legal and political values:
- Proper procedures (due process) – “These rules must be applied fairly and
consistently if the right is to have meaning.”
- Normative political values – “The procedural safeguards in the Act are
important; however, they should not be treated as ends in themselves. Rather
they should be treated as a means of ensuring that only those who have the
right to vote may do so. It is this end that must always be kept in sight.”
- New evidence and appellate courts (para 81).
oAppellate courts almost never hear new evidence, usually just the
oAppellate courts hear questions of law, not questions of fact
”If you’re going to vouch for someone, you actually have to live in the same riding as
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
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 political process)?
Politics is bound by law…
- Primacy of legal norms
- Constitutional supremacy (Legal rules can be inhibiting ‘argument’-stoppers;
must be careful about law-politics interface).
But the law is shaped by politics (and occurs in a political context)…
- Statutory law
- Politics of judicial appointments
- Judicial decision-making can be political
David Easton: Politics = ‘the authoritative allocation of values’
Law is… (very contested)
- Basic ‘positivist’ definition has four elements
oBody of Rules
oEnacted and applied by public officials
oFormulated by legitimate means
oAnd backed by state force
Role for Natural law?
- Fuller: prospective, precise and “like cases treated alike” = Rule of Law
- Dworkin: underlying moral principles
Judicial Process (in theory)
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
“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’?
oStanding (right to be in court, right person to bring this forward),
mootness, intervenors (third parties, i.e. gay rights groups, church
groups etc.), ‘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 many judges selected?
- How easy it is 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 making decisions about controversial
- Should provinces and the federal government have separate systems of courts
as they do in the US?
Systems of Law
Civil Law (Continental Europe, Asia, Quebec and Scotland partly)
Common Law (UK, Canada, US, number of other former British colonies)
Civil Law = someone doing something in advance, single author, figured out law
logically (Proactive; designed)
Common Law = based off experience, figure out law through experiences, over time
rules become solidified and based off the experience is how laws come about, many
variations (Reactive; experiential)
Civil Law is only used in Quebec for private law
If its public law it does not matter where you are in Canada it will be the same
Distinguishing the two systems
Common Law Civil Law
Sources of Law Organic, and Experiential.
Case law (judge made law,
common law); Legislation;
Written and unwritten
Legal reasoning Stare Decisis – ‘deciding
like cases alike.’
principles in code to dispute
before the court
Categories of Law
Private (civil) law – rules that govern relationships and disputes between
Public law – rules that govern relationships and disputes with a ‘public’ dimension
- Criminal law: because all criminal cases have the state as a side
[Note: both private and public law have procedural laws (rules about evidence, juries,
etc.) and substantive laws (actual rules)]
Public Dimensions of Private Law
Skwarok v. Werbenuk Estate (2010)
- Private law (wills and estates)
- Lower court (single judge), subject to appeal
- Common law rules supplemented by statutory rules
Categories of Law
Categories of private law:
- Tort – an actionable wrong committed against the person, property or
reputation of another for which a remedy is provided
oAssault and battery, trespassing, defamation, kidnapping or negligence
- Contract law – binding legal agreements made by mutual consent
oOffer, acceptance and consideration
- Family law – marriage and divorce, custody, support payments
- Property law – laws relating to rights ‘in’ something (ownership). Can be
‘real’ property (land), ‘personal’ property and more (‘intellectual’ property)
- Duty of Care: reasonably foreseeable
- E.g. Ginger Beer
Proper procedures (due process) these rules must be applied fairly and consistently if the right is to have meaning. Normative political values the procedural safeguards in the act are. New evidence and appellate courts (para 81). important; however, they should not be treated as ends in themselves. Rather they should be treated as a means of ensuring that only those who have the right to vote may do so. It is this end that must always be kept in sight. : appellate courts almost never hear new evidence, usually just the, appellate courts hear questions of law, not questions of fact transcript. If you"re going to vouch for someone, you actually have to live in the same riding as them. 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.