Key Terms & Concepts - POLD41 Mid-Term.docx

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University of Toronto St. George
Political Science
Evan Rosevear

Key TermsConcepts POLD41 MidTermKey TermsWeek 1 The Legalization of Politicsthe Mechanics of Judicial ReviewWeek 2The Countermajoritarian Difficulty the Cost of RightsDialogueRights Constitutions Constitutional Rights Rights oThere is a strong commitment on the part of most members of the society we are contemplating to the idea of individual and minority rights Although they believe in the pursuit of the general good under some broad utilitarian conception and although they believe in majority rule as a rough general principle for politics they accept that individuals have certain interests and are entitled to certain liberties that should not be denied simply because it would be more convenient for most people to deny them They believe that minorities are entitled to a degree of support recognition and insulation that is not necessarily guaranteed by their numbers or by their political weightoTo make this third assumption more concrete we may assume also that the society cherishes rights to an extent that has led to the adoption of an official written bill or declaration of rights of the familiar kind The Bill of Rights is the concern of society This is supposed to correspond to for example the rights provisions of the US Constitution and its amendments the Canadian Charter of Rights and Freedoms the European Convention on Human Rights as incorporated say into British law in the Human Rights Act or the New Zealand Bill of Rights Act All The Bill of Rights has been enacted to embody the societys commitment to rights Thus it may have been enacted sometime in the past on the societys own initiative or it may be the product of imitation or it may be a fulfillment of the countrys external obligations under human rights lawConstitution oThe whole body of rules and principles according to which the state is governed oExample In the Canadian case consists of a conglomeration of documents and conventionsConstitutional Rights oA second distinction among types of judicial review pays attention to the place of individual rights in the constitutional system of a society oIn the United States statutes are scrutinized for their conformity to individual rights as set out in the Constitution oRightsoriented judicial review is part and parcel of general constitutional review and the courts strike down statutes for violations of individual rights in exactly the spirit in which they strike down statutes for violations of federalism or separation of powers principlesJudicial Review oThe question I want to address concerns primary legislation enacted by the elected legislature of a polityoAfter all the executive has some elective credentials of its own with which to oppose decision making by judges But it is almost universally accepted that the executives elective credentials are subject to the principle of the rule of law and as a result that officials may properly be required by courts to act in accordance with legal authorizationoJudicial review is just the subjection of the legislature to the rule of lawDiffuse v Centralized Review Diffuse ReviewoConstitutional review the power of courts to strike down incompatible legislation and administrative actionoThe spread of constitutional review has both ideational and institutional underpinnings Most European countries have designated constitutional courts The courts were adopted along with constitutions that had extensive rights provisions and constitutional review became associated with the protection of rightsoOutside Europe the wave of decolonization and constitutional reconstruction led other countries to adopt constitutional review Indias new democracy adopted a model of judicial review in which the Supreme Court had a carefully circumscribed power of review Japans Americandrafted constitution also contained provision for judicial review on the American model In these and other cases constitutional review spread to new democracies where rights traditions were relatively underdevelopedCentralized Review oCentralized Review means that only the constitutional court is empowered to hold that a statute or a piece of ordinary law is unconstitutional oIn France there is no review of enacted legislation at all Frances Constitutional Council can examine the constitutionality of a proposed statute only before it becomes law Thus ordinary courts in Europe do not have jurisdiction to review statutes This system is called the centralized model whereby the constitutional court has a monopoly on judicial reviewGeneralist v Specialist Courts Generalist CourtoGeneralist courts deal with any number of different types of cases Specialist CourtoFor certain areas of law there may be a specialist court where the judges and lawyers are specifically trained in those areas of law The best example is tax courts where the legal professionals do indepth study of tax lawConcrete Ex Post v Abstract Review Ex AnteConcrete Ex PostoConcrete review takes place when a lawsuit or some other kind of litigation is brought before the court as in the case of the US system in which the Supreme Court hears specific casesAbstract Review Ex AnteoAbstract review takes place without a specific case or controversy Such review is the rule in France and occurs to a limited extent in GermanyA third distinction is between a posteriori review of the American kind which takes place in the context of particular legal proceedings sometimes long after a statute has been enacted and ex ante review of legislation by a constitutional court specifically set up to conduct an abstract assessment of a bill in the final stages of its enactmentThere are questions about how to understand ex ante review Something that amounts in effect to a final stage in a multicameral legislative process with the court operating like a traditional senate is not really judicial review though the case against empowering an unelected body in this way may be similar For some defenses of judicial review the a posteriori character of its exerciseits rootedness in particular cases is important and I shall concentrate on thatInter Partes v Erga Omnes Effects Inter Partes oThe term inter partes is the Latin for between the parties It may refer to contracts conveyances or other transactions having legal significanceo Lawsuits in which all interested parties have been served with adequate notices and are given a reasonable opportunity to attend and to be heard are referred to as inter partes proceedings or hearings oWhen a judgment is given subject to any right of appeal all the parties are bound by the result oHowever anyone who was not a party to those proceedings and who can demonstrate a legitimate interest in reopening the issue is entitled to petition the court for the right to be heard In some circumstances the judgment is given in rem or directed towards specific property and it binds everyone whether they were a party to the case or not This is done to avoid endlessly relitigating the same issues that have already been determined by the courtErga Omnes oErga omnes means in relation to allo The term is used to describe legal obligations and rights towards all Erga omnes is used in property law The right against trespass of a property can be enforced as against everyone The term is in contradiction to contract law where contract can be enforced only against a party to the contract and no otherStrongForm v WeakForm judicial review StrongForm Review oCourts can decline to apply a statute or modify its effects oThis can apply inter partes or erga omnes oCourts can strike down statutes completely WeakForm Review oCourts may scrutinize but not refuse to apply legislation deemed unconditional oCourts can declare a law incompatible with the construction Judicial DialogueHoggBushell The Charter Dialogue 1997oWhere a judicial decision is open to legislative reversal modification or avoidance then it is meaningful to regard the relationship between the Court and the competent legislative body as dialogue p 79Why Judicial Review
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