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Law; New Constitutionalism.doc

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Western University
Political Science
Political Science 3201F/G
Dan Bousfield

POLITICAL POWER AND THE LAW •the spread of constitutional supremacy •judicialization of politics - transferring of political questions to the judiciary • • - moral, public policy and political controversies • - same sex marriage, campaign finance, affirmative action • - beyond judge - made policy making • - not to be confused with judicial activism • - primarily political questions we ask judges to make more political decisions because we don't want to • or we cant be bothered •letting legal systems and judges decide on what should be fundamentally public policy issues •leads to question over who has jurisdiction over what THE SPREAD OF INTERNATIONAL LAW •1. spread of legal discourse, jargon, rules and procedures in the political sphere in policymaking forms and processes • - sheer number of lawyers • - - obsession with cop dramas, law and order •- legal jargon and every aspect of modern life - transfer of social norms into contractual ones • •judicialization of public policymaking through ordinary administrative and judicial review • - procedural justice and formal fairness in decision making processes • - - judicialization from below • - - rights alone do not guarantee their implementation, need for constant reformation • - - monitoring privatization, immigration, taxation, public contracts, trade disputes • - NAFTA - judicial dispute resolution - nationalization of EMD/Caterpillar •judicialization of pure politics - transferring matters explicitly political to the courts (the character of the nation, questions of citizenship, foundations of democracy) •- mega politics • - controversies that define and divide whole polities • - - judicialization of electoral processes • - - judicial scrutiny of executive branch prerogatives • - - fundamental restorative justice dilemmas - - judicialization of formative collective identity, national building and • defining the polity as such NECESSARY EVIL •contract rather than bardering •expansion of the regulatory environment more red tape • •judicial redrawing of boundaries between state organs •classic civil liberties, due process, rights to privacy, formal equality expand court's sphere of influence 2/3 cases deal with due process • • - terrorism increases number of cases • - 1999 Israeli Supreme Court bands torture • - threats increase the number of legislation which increases the number of people • THE LAW OF DEMOCRACY •courts deciding on Democratic matters • - electoral districts, party funding, campaign financing and advertising, term limits • - banned political parties Executive Prerogative • • - SSC - legislative action violating the charter has to be determined by the court • - politic
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