Textbook Ch 8.docx

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University of Massachusetts Amherst
Political Science
Daniel Drugge

Chapter 8: Laws, Constitutionalism, and Federalism th - In the late 19 century, the West became a law-governed society, i.e. the decisions of its rulers were codified to limit the exercise of arbitrary power and to provide predictability - Spread of western conceptions of law is derived from the proliferation of western ideas of State o Used to be that authoritative rule-making was inclusive to various groups like tribes or religious authorities o Legislatures became common and law-making practices became a civilizing mission and part of the legislative monopoly o Emphasis on legal positivism, i.e. the law is what the state says it is - Two functions of the law o “Rule by law”  concern is the authoritative allocations of societal values, laws are created to regulate human conduct  In order for these laws to function they must have public acceptance and be approved in the legislatures/other state-established rules of procedure o “Rule of law”  determines what is criminal behaviour and outlines its consequences, provides rules for adjudication  Everyone in society is expected to obey the law, theoretically everyone is equal before it - In many constitutions, the legal system is a check upon the exercise of executive power o Usually judicial branch is removed, free from the State - Just Laws are… 1) General in scope 2) Public 3) Prospective rather than retroactive 4) Clear 5) Consistent 6) Relatively constant 7) Capable of being obeyed 8) Enforced as written - Constitutions: o Generally: refers to a nation’s political culture, pattern of rule o Specifically: ma refer to a document that outlines the basic institutions of state and procedures for changing them as well as the basic rights and obligations of its citizens o Constitutions can change but states generally make it difficult so that change can happen without haste and after due reflection o One of its basic features is that it contains a list of citizens’ fundamental rights  have gone from political to include broader social rights, see UNDHR o Extension of rights however leads to the expansion of room for judicial interpretation***  Can lead to clash between the courts’ enforcement of rights and parliamentary sovereignty - 4 forms of legal adjudication of political problems o 1) “The law is law”, as practiced in France, pre-modern China
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