POLI 330 FINAL EXAM QUESTIONS AND ANSWERS
Rule of Law - Answers :- 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? - Answers :- judicial
rates, equality of litigants is seriously compromised
True or false: in the Common law system only the legislature can make laws - Answers
: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? - Answers :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? - Answers :-
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 - Answers :- not always a force for progress
- undermines dem. organizing and procedures
Arguments for judicial review - Answers :- 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? - Answers :CIVIL LAW, common
law systems don't need to be updated, just add the new cases
Common law constitutional review - Answers :- 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 - Answers :- concentrated in the const. court
- no hierarchy of institutions
Definition of Kelsenian constitutional courts - Answers :- examines the text of the law
and const. in the abstract (not in context of a particular case)
,Judges in Kelsenian courts - Answers :- 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? - Answers :NO, usually there is
a Supreme Court at the top of the hierarchy.
Justiciability - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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
What makes rule of law desireable? - Answers :- 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 - Answers :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? - Answers :COMMON LAW. There is judicial
Review: can invalidate laws, law speaks through them.
What is the system of law used most around the world? - Answers :CIVIL LAW is the
most influential + oldest (dates back to roman law). It's the law used MOSTLY around
the world.
, A posteriori powers - Answers :- const. court can decide on adopted statutes that have
already been promulgated
- all const. courts have this power
A priori powers - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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? - Answers :- 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? -
Answers :- 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
What happens after a const. court strikes down a law as unconstitutional in the Civil
Law system? - Answers :- the law is abolished, legislative must re-write and go through
the corrective revision process
- fine balance between the legislature and the court
Rule of Law - Answers :- 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? - Answers :- judicial
rates, equality of litigants is seriously compromised
True or false: in the Common law system only the legislature can make laws - Answers
: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? - Answers :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? - Answers :-
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 - Answers :- not always a force for progress
- undermines dem. organizing and procedures
Arguments for judicial review - Answers :- 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? - Answers :CIVIL LAW, common
law systems don't need to be updated, just add the new cases
Common law constitutional review - Answers :- 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 - Answers :- concentrated in the const. court
- no hierarchy of institutions
Definition of Kelsenian constitutional courts - Answers :- examines the text of the law
and const. in the abstract (not in context of a particular case)
,Judges in Kelsenian courts - Answers :- 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? - Answers :NO, usually there is
a Supreme Court at the top of the hierarchy.
Justiciability - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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
What makes rule of law desireable? - Answers :- 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 - Answers :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? - Answers :COMMON LAW. There is judicial
Review: can invalidate laws, law speaks through them.
What is the system of law used most around the world? - Answers :CIVIL LAW is the
most influential + oldest (dates back to roman law). It's the law used MOSTLY around
the world.
, A posteriori powers - Answers :- const. court can decide on adopted statutes that have
already been promulgated
- all const. courts have this power
A priori powers - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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 - Answers :- 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? - Answers :- 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? -
Answers :- 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
What happens after a const. court strikes down a law as unconstitutional in the Civil
Law system? - Answers :- the law is abolished, legislative must re-write and go through
the corrective revision process
- fine balance between the legislature and the court
