POLI 330 STUDY GUIDE
⏹ Rule of Law Answer: - 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?
Answer: - judicial rates, equality of litigants is seriously compromised
⏹ What makes rule of law desireable? Answer: - 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 Answer: 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? Answer: COMMON
LAW. There is judicial Review: can invalidate laws, law speaks through
them.
⏹ What is the system of law used most around the world? Answer:
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 Answer: 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?
Answer: 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?
Answer: - 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 Answer: - not always a force for
progress
- undermines dem. organizing and procedures
,⏹ Arguments for judicial review Answer: - 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? Answer: CIVIL
LAW, common law systems don't need to be updated, just add the new
cases
⏹ Common law constitutional review Answer: - 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 Answer: - concentrated in the
const. court
- no hierarchy of institutions
⏹ Definition of Kelsenian constitutional courts Answer: - examines the
text of the law and const. in the abstract (not in context of a particular
case)
⏹ Judges in Kelsenian courts Answer: - 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? Answer:
NO, usually there is a Supreme Court at the top of the hierarchy.
⏹ Justiciability Answer: - 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 Answer: - 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 Answer: - 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 Answer: - constitutional court petitioning itself
- no one needs to be harmed by the law
⏹ Rule of Law Answer: - 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?
Answer: - judicial rates, equality of litigants is seriously compromised
⏹ What makes rule of law desireable? Answer: - 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 Answer: 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? Answer: COMMON
LAW. There is judicial Review: can invalidate laws, law speaks through
them.
⏹ What is the system of law used most around the world? Answer:
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 Answer: 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?
Answer: 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?
Answer: - 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 Answer: - not always a force for
progress
- undermines dem. organizing and procedures
,⏹ Arguments for judicial review Answer: - 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? Answer: CIVIL
LAW, common law systems don't need to be updated, just add the new
cases
⏹ Common law constitutional review Answer: - 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 Answer: - concentrated in the
const. court
- no hierarchy of institutions
⏹ Definition of Kelsenian constitutional courts Answer: - examines the
text of the law and const. in the abstract (not in context of a particular
case)
⏹ Judges in Kelsenian courts Answer: - 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? Answer:
NO, usually there is a Supreme Court at the top of the hierarchy.
⏹ Justiciability Answer: - 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 Answer: - 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 Answer: - 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 Answer: - constitutional court petitioning itself
- no one needs to be harmed by the law
