Exam (elaborations)
POLI 330 Final Exam
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Exam of 24 pages for the course POLI 330 at POLI 330 (POLI 330 Final Exam)
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POLI 330 FINAL EXAM QUESTIONSWITH CORRECT ANSWERS
g Rule of Law - - modern definition comes from work by Dicey in 1885
- equal responsibility and protection under rule of law, meaning equal for all members
- gvmts should also be restrained by the rule of law
- laws have to be prospective (apply from when they're passed onwards), publicly promulgated (available
to the public) and universal
How can we tell how much rule of law there is in a given country? - - judicial rates, equality of litigants is
seriously compromised
What makes rule of law desireable? - - purported link between rule of law and justice, social
predictability is liked by both parties
- often seen as the main reason citizens for joining a state
- greater likelihood that fundamental rights will be respected
- facilitates economic dev.
True or false: Civil law is built on codification - TRUE, all the laws that legislation produces are codified in
statutes, by substantive (whats legal and illegal) or procedural laws (how evidence is collected,
procedures in which cases move through the legal system).
In which system does judicial review exist? - COMMON LAW. There is judicial Review: can invalidate laws,
law speaks through them.
What is the system of law used most around the world? - CIVIL LAW is the most influential + oldest
(dates back to roman law). It's the law used MOSTLY around the world.
True or false: in the Common law system only the legislature can make laws - FALSE, Common law is
based on recognition that both the legislature and the Courts make law (judges make law). Whereas Civil
law is based on the idea of legislative supremacy.
What is the basis of the Common law's argument for judicial review? - In order to guard against tyranny
of the majority you need judicial review.
What is the basis for the Civil law's argument against judicial review? - - courts = counter majoritarian
- unaccountable institutions, not elected
- members of the elite, not subject to any checks themselves
- legislature should have the biggest power in society; laws shouldn't be controlled by the minority
(judges)
,Arguments against judicial review - - not always a force for progress
- undermines dem. organizing and procedures
Arguments for judicial review - - powerful courts can hold the other 2 branches accountable
- increase transparency
- reduces partisan conflict and pacifies politics
Which legal system needs to be constantly updated? - CIVIL LAW, common law systems don't need to be
updated, just add the new cases
Common law constitutional review - - diffuse and concrete
- not only the SC, but can be exercised by any court (entire judicial hierarchy has power of judicial
review)
Kelsenian type of constitutional review - - concentrated in the const. court
- no hierarchy of institutions
Definition of Kelsenian constitutional courts - - examines the text of the law and const. in the abstract
(not in context of a particular case)
Judges in Kelsenian courts - - are scholars (not judges) good at abstract comparisons of texts, good @
const. doctrine
- judges are in the ordinary judiciary and are trained to only apply laws
Does the const. court sit on top of the judicial hierarchy? - NO, usually there is a Supreme Court at the
top of the hierarchy.
Justiciability - - who can bring cases to court, what can they be about
- who has standing?
- governed by numerous/complicated doctrines which vary from country to country
Actio popularis - - individuals can draft petitions and send it to the constitutional court and argue again
without
having been harmed themselves, that a certain law is unconstitutional and should be stricken down
- opens up the process to everybody
Recurso de Amparo - - option for litigants to ask to suspend a regular case/ask for protection from laws
they see as unconstitutional
- ask const. court directly, in these cases the court will rule directly on a case
- may rule to suspend law for the particular case
Sua Sponte power - - constitutional court petitioning itself
, - no one needs to be harmed by the law
- may see that many "recurso de amparo" cases have arisen, look into the constitutionality of that piece
of legislature
A posteriori powers - - const. court can decide on adopted statutes that have already been promulgated
- all const. courts have this power
A priori powers - - const. court can intervene before a bill has been voted on, while its being discussed
- in this case, very much a legislative institution than judiciary
Legislative omission petition - - pinnacle of constitutional review power: can rule on idea before even
suggested: i.e. not having a certain law = unconstitutional.
- this makes the const. court a positive legislator
- eg. post-communist countries
Constitutionality on the application of the law - - const. court may decide even if the law is
constitutuional in the way it was drafted, if they
have been unconstitutional in the way it was applied
- can issue a decision that instructs other institutions/judiciary
how to apply the law in such a way that it remains constitutional
Diffuse review model - - this is in the common law system, in the Supreme Court
(1) public hearings
(2) When the court reaches a decision, if there are disagreements b/w the justices, these disagreements
are usually noted in a public dissent opinion
(3) the vote that the supreme court justices took to arrive at majority opinion is
publically know- so you know whether it was a unanimous decision or a close
decision
Concentrated review model - - found in the civil law system, in the const. court
- they deliberate behind closed doors. - rarely publish dissents, rarely information about how the vote
broke down
Why is dissent not published in the concentrated review model found in civil law systems? - - need for
clarity of decisions so ordinary courts can know how to apply the law
- will sound more united if the const. court does not publish dissent
Why is dissent useful in the diffuse review model found in common law systems? - - provides a summary
of arguments made on the other side, in order to help lower court judges interpret when they exercise
their power of judicial review
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