Constitutional Law Lecture 1
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Created by:
ethansawyer on September 28, 2011
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44 terms
Terms | Definitions |
|---|---|
 command theory | law is command backed by sanction Problems: too broad, too narrow |
| guiding behavior | first primary function of law i. preventing undesirable behavior ii. securing desirable behavior by coordinating activity |
| providing facilities for private legal arrangements | second primary function of law (i.e. contracts, marriage, wills) |
| provision and distribution of goods | third primary function of law (i.e. providing for taxation and all of the social programs and common goods that are paid for from taxation) |
| settling disputes | fourth primary function of law |
| Aquinas | 'Law is an ordinance of reason for the COMMON GOOD OF A COMMUNITY, promulgated by the PERSON or BODY responsible for looking after the community' |
| constitutionalism | the powers of gov't ought to be limited and limited by law. - actions of a limited government are evaluated against the constitution |
| the rule of law | the discretion of decision makers should be constrained by general laws, set out in advance. rulers must not be free to act arbitrarily or maliciously. the law should apply to everyone alike |
| rules must be prospective, not retroactive | laws must apply to future events, not past ones |
| rules must be capable of being complied with | law cannot demand the impossible |
| rules must be promulgated | people have to access to what the law actually says. uncertainty is not ideal |
| rules must be clear | if rules are too vague and people cannot be sure what they mean, then they cannot use the law as a guide |
| rules must be coherent with each other | the satisfaction of one law cannot result in the violation of another |
| rules must be stable | if the law changes too often or too radically, people will lose confidence in their ability to organize theIr lives around it |
| the making of orders applicable to relatively limited situations must be guided by relatively general, clear, stable rules | where the law grants discretion to decision makers, it must be bounded, guided discretion |
| constant and accountable | authority must be |
| constitutional law | concerned with the rules governing the use of government power (either between governments of with people) |
| separation of powers | a constitution assigns responsibilities to different institutions within the government. |
| division of powers | in a federal state, a constitution assigns jurisdiction over different matters to either the federal or provincial governments |
| establishment of civil rights | a constitutions can limit government power by providing legal rights to individuals (i.e. charter of rights and freedoms of 1982) |
| asserting the principles of a nation | a constitution can make a statement marking the transition from one legal order to another |
| state | an organized political community with government and territory |
| constitution | the set of rules defining a states organization and operation |
| constitutional rules | consist of customs, conventions and laws about the different institutions of the state, their composition and powers, and their relationships with one another and with citizens |
| unwritten constitutions | constitutional rules are spread out over multiple documents |
| written constitutions | constitutional rules are contained in a single document |
| flexible constitution | one under which every law can legally be changed with the same ease and in the same manner by the sovereign authority |
| rigid constitution | one in which certain fundamental constitutional laws cannot be changed in the same manner as ordinary laws (only amended through special procedures) |
| executive branch | holds the power of governing, administering and enforcing laws |
| legislative branch | holds the power of making, altering and repealing laws |
| judicial branch | holds the power of adjudication on dispites |
| act of settlement | enabled judges to maintain office even if it was at the sovereigns displeasure |
| security of tenure | judges hold office on the basis of good behavior. they can only be dismissed if their behavior on the bench was found wanting by a resolution of both houses of parliament |
| responsible government | the government has to respond to political issues through the relevant government minister |
| separation of powers | A constitution assigns responsibilities to different institutions within the government |
| civil rights | the constitution limits government power by providing legal rights to individuals. So the Charter provides individuals with relief against infringements. In Canada, only since 1982 |
| asserting the principles of a nation | regarding the constitution, particularly when marking the transition from one legal order to another |
| sources of constitutional law | i) written text ii) case law iii) convention iv) unwritten principles |
| constitution act 1867 (BNA act) | This is the closest thing we have to "The constitution." United Ontario, Nova Scotia Quebec and New Brunswick. Allocates responsibilities among the provinces and fed |
| constitution act 1982 | notable features: i) amending formula ii) charter of rights and freedoms iii) provided an open-ended definition to the constitution of canada, SECTION 52 |
| convention | In an unwritten, or partially written, constitution, the rules that constrain the government NON LEGAL RULES` |
| how conventions differ from laws | Primarily in enforcability.They are no less certain than laws: the courts can establish what they are. |
| how conventions are like laws | considered obligatory to those officials to whom it applies |
| courts can define conventions (if in dispute) | What is the role of the courts with respect to conventions? |
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