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Lecture 8

POL224 Lecture 8 Oct 29th .rtf

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University of Toronto St. George
Political Science
Rodney Haddow

POL224 October 29th 2013 UK vs. US Constitutions • written constitution, separation of power diffuses power • unwritten constitution, parliamentary supremacy concentrates power in executive leg, especially former with disciplined parties • rights in Britain are common law type meaning those rights can be denied by a statute, power of parliamentary sovereignty • the american constitutional order is governed by the separation of power, written into the document is many different ways, instead of creating a power pact at the centre, there is a balance, leading to non-tyrannical restrained government • role of the courts, fundamentally is pivotal to what distinguishes the american and british constitutions b because of the fact that the judiciary has very different roles in the two due to the nature of the written constitutions • legislatures pass statutes, executives implement laws, the judiciary is the third building block as it adjudicates and interprets law • if law is written down and only exists by convention, somebody must interpret it. courts authoritatively interpret law. • in all the anglo countries all the courts establish 'stare decisis' (precedent basis, differs from the civil code system which exists in most european nations off of roman law • case law, writing up of a particular decision on a particular matter that the courts have deceived by applying previous law to a case and adding to the law inevitably • important cases where a statute is being applied in a particular case and its ambiguous whether or not it should apply to another case in a particular way • by doing this they establish a precedent and they make 'common law' in process • the common law is very much paralleling the nature of the british constitution, common law is n ongoing flow of interpretation of the existing ways of applying law is refined and adapted over time with new cases in court • but this rule of law works differently in us and uk, they have a respect for the law, interpreting the law and the court has a responsibility has a responsibility to accept these interpretations • a judge cannot be fired easily for coming up with a decision on interpreting the statute that the government does not agree with • works differently because of the written constitutions UK Unwritten Constitution • so courts interpret common law and thereby remake it. • we call this process 'embellishing' common law. • for example, there are a lot of laws in all three countries that have never been brought down through the common law condition • lets say when it came to breaking windows, there was never a statute passed about it. you have violated another persons property and you now owe them as they have a claim against you. • the system of common law establishes the principle that if you violate someones property you are responsible for it. but when the perpetrators lawyer looks at case law, he notices what age you have to be before you can be deemed responsible for your behaviour. established in a series of cases from previous years you must be deemed to be of an adult disposition and reached an age of maturity to be judged • johnny is 8 years old, can he be deemed responsible? neither lawyer on either end can come up with a precedent that establishes more precisely what it means to be a mature person, in other words it was never decided that you have to be of a certain age in order to be deemed mature • if thats the case, the judge would say to the jury you have to decide whether or not johnny is responsible • case law was the basis for the decision and it has just been shaped, 8 yo cannot be deemed mature • now we have a new law, it never went through the statute and it was never enacted upon by the executive, it was made through the judiciary • following year a similar event takes place, courts decide at the age of 10 you are mature enough and responsible because you have gone through the threshold of some psychological development • through this flow of precedence, the english law has moved from you are responsible for violations of a persons property when you are mature enough to you are responsible fore that persons property when you are over the age of 8… the law has changed, courts in following their past precedents have reshaped that precedent of the legal system and they are both contributing and remaking common law when they make amendments and changes through different case applicability • they also interpret statutes (from Parl) • legislatures make new laws in a much more direct conscious and new way • in the case of the 8 yo, the courts decided he could not be responsible for his behaviour, next thing you know there are reoccurring instances of 8 yo kids making the same violations, causing public unrest. government's pass a statute saying here and after you will be held responsible as a statute beyond the age of 6, that statute trumps and overrides the common law • why, because parliament is sovereign, its supreme and its authority trumps everything else. • a statute also then becomes subject to the common law, it could embellish itself. how? • lets say the
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