| Brian Z. Tamanah, On the Rule of Law | F.C. DeCoste, On Coming to Law | Ryan Alford, Permanent State of Emergency | R. v. Sec. of State for Exiting the EU / Reference re Secession of Quebec | David Dyzenhaus, Legality & Legitimacy |
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What is the rule of law.
It is preeminent and can serve as a check against abuse of power
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Who is Montesquieu
He said "liberty is present only when power is not abused".
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Who is Brian Tamanah
He described the rule of law as a constitutional concept that "congealed into existence in a slow, unplanned manner than commenced in the Middle Ages, with no single source or starting point"
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What is the executive branch.
It was held that this branch may not initiate withdrawal from the European Union by formal notification to the Council of the European Union.
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What is legality
Whether an act contradicts the established rule of the day
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What is under the rule by law.
Under which the law can serve as a mere tool for a government that suppresses in a legalistic fashion
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What is Roncarelli v Duplessis
A Canadian case that stands for the proposition that there is no such thing as absolute discretion and that the law provides no protection to the public officers who unlawfully acts outside their duties.
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What is the Universal Declaration of Human Rights.
This document states that human rights should be protected by the rule of law.
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What is article 50 of the TEU.
According to this article, any Member State may decide to withdraw from the Union “in accordance with its own constitutional requirements.”
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What is Natural Law
The perspective that contends if law is not moral then it ought not be obeyed. It often stands in contrast to legal positivism
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Who is Friedrich Hayek.
This theorist observed the decline of the rule of law in the West roughly 50 years ago.
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What are: (1) the acknowledgement of the distinction b/w public and private spheres and the construction of barriers to state invasion and subordination of the private realm (2) Separation of powers, and (3) Regime of rights-bearing rules.
The ROL requires of states 3 primary institutional investments.
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What is the executive.
It is this branch in the US that has enlarged its powers in the 21st century.
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What is Canada (para 55).
Is it a federal state
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Who is H.L.A. Hart
Theorist who conceptualized law is being comprised of a "core" of determinate law and a "penumbra" of indeterminate law
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What are the World Bank and International Monetary Fund.
In the 1990s, these two organizations started conditioning the provision of financial assistance on the implementation of the rule of law in recipient countries.
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What is political morality
This trumps personal morality in times of conflict.
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Who is Lon Fuller.
He asserted that positivist approaches in legal philosophy did not adequately account for all of the necessary features of a legal system.
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What are constitutionalism and rule of law (para 70).
These principles lie at the root of the Canadian system of government.
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What is: people can agree peace and order are preferable to chaos.
Hobbes' exception to the problem of order
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What are (1) that the rule of law is incompatible with with an expansive social welfare state, and (2) that the rule of law carries the ever present danger of becoming rule by judges and lawyers.
Tamanah outlines two particular concerns that arise with the decline of the rule of law in the West.
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What is private law.
This kind of law constrains social power and constructs a sphere of rights which secures our place in society.
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What are (1) the rule of law forbids the exercise of arbitrary power, (2) officials are subject to the law, and (3) the executive is barred from setting up special courts when citizens bring claims against the executive.
In his definition of the rule of law, Dicey outlines three elements.
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What is the preamble to the Con Act of 1982.
This document reads "whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law"
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What are: there is a right answer in every case, fully determined by the law & there is no hard separation between the core and the penumbra.
Dworkin's challenges to Hart's conception of law.
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