POLI 330 Final Exam questions
and answers
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
- may see that many "recurso de amparo" cases have arisen, look
into the constitutionality of that piece of legislature
A posteriori powers - answer - const. court can decide on adopted
statutes that have already been promulgated
- all const. courts have this power
A priori powers - answer - 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 - answer - 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
and answers
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
- may see that many "recurso de amparo" cases have arisen, look
into the constitutionality of that piece of legislature
A posteriori powers - answer - const. court can decide on adopted
statutes that have already been promulgated
- all const. courts have this power
A priori powers - answer - 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 - answer - 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
