Unit 8.docx

Unit 8 - Key Elements of the State Study Notes Constitutions are a part of the broader legal and statutory environment that structure activities within a political system. In many liberal democracies, the constitution is the core of a country’s political system and traditions; it represents the fund...

Unit 8 - Key Elements of the State Study Notes Constitutions are a part of the broader legal and statutory environment that structure activities within a political system. In many liberal democracies, the constitution is the core of a country’s political system and traditions; it represents the fundamental law of the political community and sets the limits for political interaction. As such, a constitution provides the rules for political institutions and interaction in society. It is often referred to as a country’s “basic law” because it outlines the legalistic foundation for a political system. The Canadian Constitution With the passage of the 1982 Constitution Act, the role of the judiciary in Canada changed immensely. Some critics of the new constitution claim that the Supreme Court of Canada now resembles its American counterpart. But the Canadian version has no similar review and confirmation of appointments currently enjoyed by the US Senate. Other critics argue the new role further erodes the role of Parliament in the Canadian political system. Before the Constitution Act of 1982, the judiciary was only called upon to decide which level or levels of government had jurisdiction within a disputed area. Since 1982, the Charter of Rights and Freedoms has had broader implications for Canada’s political system. The inclusion of the Charter of Rights and Freedoms in the Constitution Act of 1982 gave the judiciary new authority to judge legislation outside the powers of both levels of government. For instance, the Supreme Court did this in 1988 when it struck down the Canadian abortion law, deeming it to be unconstitutional. The Judiciary The judiciary performs several functions: it rules on the constitutionality of public and private acts, it interprets laws, and it adjudicates disputes. Various levels of government will often refer legislation or intended legislation to the courts for an opinion on whether it is within their jurisdiction. For example, before repatriating the Constitution from Britain in 1982, the Canadian federal government asked the Supreme Court to determine the legality of its intended action. As a result of the inclusion of the Charter of Rights and Freedoms in the Constitution, many pieces of existing legislation have been referred to the courts to determine their constitutionality. Statutes, common law, and other legal instruments frequently are unclear or have internal contradictions. In some political systems, even without recourse to legal action, courts can be called upon to provide a binding interpretation. In other systems they intervene only in the event of a dispute. Court adjudication is necessary in any society that does not use coercion as a means of conflict resolution. To perform that function adequately, courts must be perceived as independent. To this effect, many political systems grant judges a degree of independence and security of tenure unparalleled by any other structure. Federalism Federal systems divide powers between the central government and regional governments. Legal authority is given to these regional governments to act on behalf of citizens. Often particular roles and capacities are given to the regional governments. For instance, in Canada, education is a provincial responsibility that is paid for in part from transfer payments from the central federal government in Ottawa. Generally, federal states are territorially large, so regional authorities have a functional role to play. States such as Canada, the United States, Germany, and Australia thrive under the federal system in part because powers and responsibilities are distributed to provincial, state, or “länder” (“states,” in German) governments, which work in conjunction with the central government. Conclusion While power shifts may take place within the structure of government, the basis of the governmental structure is laid out in the constitution. While all countries have constitutions, the rule of law is typical of western liberal democratic governments.