POLS lecture 2.docx

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Left over from the previous lecture:
- Federal government did not have control over trade and commerce inside the province;
however they did have control over it when it was between different provinces.
- Politics is bound by law the rules of laws trump the rules of men!
o Primacy of legal norms. Constitutional law, statutory law, and common law this is the
ranking from the highest to the lowest). So if judge makes a decision, it can be ruled
over by statutory law, and if the constitution doesn’t agree with the statutory law then
constitution can trump it; and judges also partly control the constitution!
o Constitutional supremacy (Read constitution). Legal rules can be inhibiting ‘argument’ –
stoppers; must be careful about law-politics interface.
- But law is shaped by politics
o For example, statutory law… it is politically bound in terms of who controls and who
trumps it.
o Politics of judicial appointments someone has to appoint the judges… which also can
be a political process!
o Judicial decision-making can be political Judges are human beings, have their own
different backgrounds, which can therefore effect their ruling… hence making it a
political process
- Law is…
o Basic ‘positivist’ definition has four elements…
Body of rules… enacted and applied by public officials… formulated by
legitimate means… and backed by state force.
o Role of Natural law?
Fuller: prospective, precise and ‘like cases treated alike’ = rule of law
Dworkin: underlying moral principles. Has to be related to justice in some sense.
The law is not what it is… it should be moulded by moral principles to make it
- Core of the judicial process is ‘dispute resolution’. Legislatures are giving us general rules, courts
hear disputes over laws, and judges are independent mediators who resolve those disputes.
- Courts are one method of resolving disputes… not the only method. There are still societies
where religious leaders are used to resolving disputes. But with Judges you do not have an
option on whether or not you want to agree… you have to agree!
o Courts adjudicate disputes by applying the law to the facts of the dispute.
o Accepted by both parties because the court is ‘impartial’
- ‘Judges as neutral adjudicators of disputes applying law to facts’ is much more complicated than
first appears.
o Role of the judge (adjudicator vs. mediator).
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