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Chapter 8

Chapter 8- Law, Constitutions, and Federalism.docx

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Queen's University
Political Studies
POLS 110
Jonathan W Rose

Chapter 8- Law, Constitutions, and Federalism Law and Politics  The spread of Western conceptions of law around the world is a consequence of the spread of Western ideas of the state  Western states arrogated to themselves exclusive responsibility for issuing such rules as laws, and they also codified them for the sake of consistency of application  This monopoly on legislative activity is another essential feature of the modern state  Legal positivism law is what the state says it is  It can be said for both law and politics that its primary concern is the authoritative allocation of values in society  For laws to be legitimate (accepted by citizens) states have established rules of procedure  The law also establishes what is criminal behaviour, it prescribes punishments and it provides impartial rules for binding adjudication in disputes  The legal system is a check upon the exercise of power by the executive Constitutions  In the broad sense constitution denotes the overall structure of a state’s political system  It can be expanded even wider to cover a nation’s political culture  The narrower use of the term refers to a specific document that lays down the basic institutions of state and procedures for changing them, as well as the basic rights and obligations of its citizens o Core of the legal system  Only three states do not have a specific constitution o New Zealand, UK and Israel  Virtually no state includes all of the most fundamental elements of the political system in one document, such as the establishment of one electoral system  Constitutionalism can encapsulate a normative outlook on the political values embodied in a particular country’s constitution, or it can mean a broader normative standpoint: making the observance of constitutions the most fundamental principle of political life  States make it very difficult to change constitutions by insisting on special procedures  The principle of rule of law does underlie a great deal of western advice on good governance Key Points  Common usage of the term constitution is ambiguous. It can mean either a legal document and/or a pattern of rule  Constitutions may embody aspirations for future patterns of rule, as well as regulating how that rule should be exercised now  Constitutionalism is a normative doctrine giving high propriety to the observance of a constitution’s provisions and making it effective Fundamental Rights  One of the basic features of constitutions is that they usually contain a list of fundamental rights of citizens  In the 20 century constitutions have often gone beyond purely political rights to include broader social rights  The court system is increasingly limiting the freedom of manoeuvre of elected governments as there is a wide range of interpretation  Constitutions of nation-states contain not only provisions regulating the operation of specific institutions but also aspirations about the direction in which their respective political systems are expected to develop Key Points  Over the last 2 centuries there has been an increasing number of universal rights  They have expanded from political freedoms to rights to welfare, cultural protection, and cultural respect  There is a potential clash between the enforcement of rights by courts and the sovereignty of parliament Constitutional Courts and Judicial Review  In most countries those who serve on the constitutional court are either trained and experienced lawyers, or academic lawyers  The court has a readiness to change government decisions through judicial review, on the grounds that fundamental rights have been infringed, or that administrators have failed to observe due process Key Points  States establish especial courts, or legal arrangements, to safeguard constitutions  There is an increasing tendency to appeal for executive policy-making to be subject to standards laid down by judicial review Legal Adjudication of Political Problems  Approaches to the function and purpose of law vary from country to country  Four basic differences, and how they revolve around different interpretations of the meaning of justice o The law of a particular country is neither more nor less than the sum of the laws which it has established  The wording of each individual law is approved by parliament  The role of the judge is simply to enforce the law, not question it o The function of the law was subordinated with some higher, non-legal goal: communism  Appeals to the courts to defend the human rights of political rebels were bound to fail o In general there is no doubt about the traditional importance of law and justice  It was both r
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