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POLS 3130 Midterm: pols3130notes

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Political Science
POLS 3130
Kate Puddister

Chapter 1 Drummond case: Charged with attempted murder, inserted a pellet gun into her womb. Defense motion to dismiss charges granted. What is Politics: Who gets what, when and how Politics is about making decisions that distribute resources such as how much money should go to education, health, national defense, police forces, environment Creating rules What is the Study of Politics: processes surrounding the making of decisions and outcomes of the decision making process. Who has legitimate authority to make decisions for the community? Classical Natural Law: For a law to be valid, it has to be morally permissible Law ‘as is’ should be viewed as a set of rules created through a set of procedures (secondary rules) Legal Positivism: 4 characteristics Body of rules (1) Enaction by public officials (2) Enaction in legitimate manners (3) Backed by force of state (4) Body of Rules: distinct from customs or convections Enacted by Public Officials: law is the domain of government actors. Churches, professional organizations, businesses have their set of rules, but not considered ‘law’ and cannot be enforced unless the government. Sanctions them as the law. Rules Must be Enacted in a Legitimate Manner: specific procedures by government distinguish from rules developed by terrorists, gangs, criminals Law is Backed by Force of State: laws can be backed with the threat of penalties (fines, imprisonment) Rule of Law: every person, no matter what social, political, or economic status is equal before the law. Law must be applied by fair and impartial judges. Roncarelli vs. Duplessis Roncarelli lost his liquor license, Duplessis overstepped by using his authority to take it away (he was the Premier of Quebec). Supreme Court ruled in favour of Roncarelli as there was not a legit reason for his license to be revoked. Ronald Dworkin: argues when making decisions, judges are obliged to base them off rights based on principles. Person should not profit/benefit from fraud or his crime. Heir who murdered his grandfather would not be entitled to his inheritance. Categories of Law: -international law -domestic law -public law -private law International Law: rules that governs disputes/relationships between states OR between people, businesses and organization in more than one state. International law can be difficult to deduce and enforce NAFTA, World Trade Organization Private Law: rules that govern relationships and disputes between individuals, groups and corporate entities Public Law: rules that govern relationships and disputes involving the state Main Types of Private Law: torts, contract law, family law, property law Main Types of Public Law: constitutional law, criminal law, admin law, tax law Civil Law: a system of laws in which legal rules are found in legal codes Common Law: system of law where legal rules are found in legal procedures (judge-made law) Common Law vs. Civil Law: Common law=passed to supplement common law made by judges (i.e. Criminal Code). This contains substantive and procedural criminal laws vs. judges in civil law systems look to past judicial decisions for their judgements to provide consistency in the application of the codes interpretation of codes The Canadian Legal System Federal Constitutions: outline division of power between national government and the provincial governments • Constitutions set how the government is structured • Constitutions help define the relationship between citizens and the state (for example, right to a fair trial, right to social benefits) • Quebec uses civil law to govern private laws such as family law, torts, commercial law marriage, copyright and money law is set in Quebec code • Elsewhere in Canada, common law is used for private and public law Judicial Process • Adjudication is the only possible type of triadic system dispute resolution with a 3 party (judges, refs, mediators, arbitrators) Triadic Systems • Power the 3 party possesses • #1: ‘Go-between’shuffles proposals back and forth between the parties • #2: ‘mediator’assists both parties to have a mutual agreement and solution to their dispute • #3: ‘arbitrator’can impose a solution parties have consented in a direct or indirect way (may have signed a contract calling for arbitration in the event of a labour dispute), can be binding or non-binding • #4: ‘judge’imposes a binding decision. Usually one party is not before the judge voluntary ---------------------------------------------------------------------------------------------------------- ‘Go-Between’ ‘Mediator’ ‘Arbitrator’ ‘Judge’ • A common understanding of courts is that they adjudicate disputes by applying laws to facts. This will determine an outcome. • Meditation is becoming more common in Canadian Courts • Greater use of “pre-trial” • Constitutional Law= Supreme law (cannot be easily changed) • Adjudicatory philosophy= restraint in making rules • Policy-making philosophy= willingness to shape the law Supreme Court of Canada: Functions • Primarily an appellate court (reference cases are an exception such as jurisdiction) • Jurisdiction is unlimited public and private laws federal and provincial laws • Decisions are binding on all lower courts in Canada Supreme Court: Unifying or Centralizing? • Unifying meaning all courts in Canada can be brought to the Supreme Court Supreme Court: Access and Docket • The Supreme Court holds a great deal of discretion and control over what cases they will hear this created a reduction in the number of private law cases public importance is a primary concern for case selection • Few appeal by right cases appeal by right is where a litigant is entitled to appeal to a higher court without that courts permission • Both individuals and governments must apply for ‘leave to appeal’ leave to appeal: cases that require the courts consent to be heard, prevalent at the Supreme Court level Courselink Readings (Weeks 1-5) Reference De Succession Du Quebec • Constitution is primarily a written principle in this article, 4 foundational constitutional principles are discussed 1. Federalism 2. Democracy 3. Constitutionalism 4. Rule of Law 5. Respect for minority rights Federalism • Our federal system of government shares its political power by 2 orders of government  #1 federal government, #2 provinces. Each is assigned different aspects of jurisdiction by the Constitutional Act • Principle of federalism runs through the political and legal systems of Canada • Principle of federalism recognizes all parts of confederation and the self-governance of provincial governments • Differences between provinces • Principle of federalism makes the goals by culture and linguistic minorities easier to form the majority within the province Quebec is: • Majority of the population speak French • This possesses a distinct culture • Province of Quebec is a political unit • Confederation enabled Fr
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