politics and law principles of liberal democracy

Government

The political and legal system of a nation state - A government is the body within a society that has the authority to make and enforce laws and to provide public programs

Roles of government (8)

Keep society safe, making and enforcing law (criminal) , providing a mechanism to solve public disputes, economic functions, reduce inequality, provide a system of currency, protect rights of people, provide a social safety net

Liberal democracy

A form of government which balances the rights of individuals (Liberalism) and the will of the majority (Democracy)

Representative democracy

A form of democracy in which the people are sovereign, but are represented in government by elected officials of parliament

Constitutional Monarchy

A form of government in which the head of state is an inherited position with powers limited by a constitution, but the head of government is elected

Autocracy

A government form in which political or legal power is unlimited by any constitution, characterised by a concentration of power in the executive arm, a lack of checks and balances and rule by law

Rule of Law

A philosophy that in essence states that society should be governed by laws, not through the arbitrary exercise of power

The purpose of Rule of Law

A legal system in which people obey the law through a moral obligation, rather than due to fear

Key Characteristics of Rule of Law

• Made by representatives chosen by the people

• Made in an open and transparent way

• Should apply to all, equally - no-one is above the law

• An independent judiciary which the government is accountable to

Operating principles of liberal democracy

• Majority rule

• Equality of political rights

• Political freedom

• Political participation

Constitutionalism

Refers to the idea that power should be limited, including a culture where there is respect for laws that limit power

Political constitution

A set of fundamental laws that ‘govern the governors’

What is the purpose of a constitution?

• Sets limits on what government can and cannot do, ensuring that they are held politically and legally accountable

• Makes sure that government power isn’t concentrated in one person (Divides power, creates checks and balances)

Typical functions of a constitution

• Outlines the basic structure of government (Separation of powers, main offices and institutions, levels of parliament)

• Outlines the powers of the federal government

• Establishes how the constitution is enforced with a constitutional court

• Outlines elections, appointments, term lengths, term limits etc

• Expresses limits on what government can’t do (as negative rights)

Characteristics of a constitution

• Higher law (Overrule other laws)

• Entrenched (Difficult but not impossible to change)

• Codified (written down in one document)

Explicit rights

Directly stated in the constitution

Implicit rights

Not expressly written in the constitution, but are interpreted to exist by the high court

What are the 3 branches of government and their roles in Australia?

• Legislative: Parliament and GG (Makes laws)

• Executive: PM and Ministers (Carries out laws)

• Judiciary: Court system (Makes rulings on laws)

What is the purpose of SOP

To prevent power from being concentrated in one person, by creating accountability and setting up a system of checks and balances that each arm puts on each other

What type of system does the US have in relation to SOP

A presidential system, meaning that the executive is the president (who is directly elected) and cabinet, and the executive is not allowed to be a part of the legislative. This allows for a clear separation of powers

What type of system does Australia have in relation to SOP

A parliamentary system, meaning our executive is drawn from the legislative. To be PM or a minister, you must win a majority in your electorate and your party must win a majority of house of reps seats. This prevents a full separation of powers.

Crucial feature of SOP

An independent judiciary which bases decisions on the law, rather than government/parliament pressure

Opposite of SOP

Centralised power - a small group of people has complete control, making and applying laws, and telling the courts what to do

Responsible government

The unwritten constitutional convention which states that the executive is drawn from and responsible to the legislative

Federalism

Refers to a system of government where sovereignty is divided between one national government and two or more regional governments

Responsible government in practice

• Must first be elected as representative of an electorate

• Executive government formed by party with a majority (76+) seats in the House of Representatives

• Other members of the house of reps and the opposition can question them

• Legislature can vote out executive

US executive (In terms of responsible gov)

The US executive is directly responsible to the people and is not formed by the legislature

The division of powers

• Exclusive powers are held by only federal government (in constitution)

• Concurrent powers are held by both federal and state governments (in constitution)

• Residual powers are held by only state governments (not in constitution)

Human rights

Entitlements or freedoms intrinsically possessed by everyone

Characteristics of human rights

• Inalienable (cannot be permanently given or taken away)

• Indivisible (one taken away effects the others)

• Universal (apply to everyone, equally)

Political rights

Rights that protect the ability of individuals to participate in government and civil society (eg the right to vote, the right to free speech and media)

Political participation CHECK DEFINITION

Political rights and freedoms which enable citizens’ political participation, which in turn, permits citizens a role in their own government

The active involvement of citizens in a political system (eg voting, involvement in political parties, pressure group activities, protesting)

How are human rights protected in a liberal democracy?

• The rule of law

• Active civil society

• Human rights culture

• Democratic government through elections

How does the rule of law protect human rights?

• Needed for enforcement of rights and allows for a culture of enforcement

• Law is irrelevant without rule of law, as it can be ignored

• Rule of law depends on legal rights

Civil society

Refers to an array of organisations who through their actions keep government accountable (Media, NGOs, international organisations etc)

How does an active civil society protect human rights?

Monitoring and reporting human rights abuse puts pressure on the government to account for their actions. Effective civil society relies on political rights (free speech, to join a political party etc)

How does a human rights culture protect human rights?

People need to know and protect their rights and the rights of others

How does a democratically elected government protect human rights?

A government which is elected and democratically accountable to the people will tend to protect human rights

• If people are informed (active civil society) and care (human rights culture) about their rights

• Only with respect to politically powerful majority groups

Liberal democracy principles (key operating principles and others)

Key operating principles:

• Equality of political rights

• Majority rule

• Political participation

• Political freedom

General principles:

• SOP

• Rule of Law

• Constitution/constitutionalism

• Judicial review

Judicial review

Judicial review is a process in which executive and legislative actions can be challenged through an independent court system. Needs an independent judiciary to be effective

Judicial review of executive actions

Executive actions must be supported by a power granted in the constitution or statutory law, so the executive can’t act in a way which violates the constitution or a statutory law

Judicial review of executive (constitution)

If an executive order is decided to be violating the constitution, it will be stopped by a legal order from the judiciary (an injunction). This is true even if a statutory law allows the action, as the constitution is higher law

Judicial review of legislative

Legislative actions (eg making a law) can be reviewed by the judiciary for violating the constitution

Factors to make a judiciary independent

• Relatively secure in their job (can’t be fired by an angry government)

• Cannot be in the other 2 branches of government

• Secure income that can’t be changed easily (not open to bribery, income can’t be increased/decreased by government)

Why is judicial review central to the rule of law?

• Rule of law relies on an independent judiciary to review the other 2 branches actions, so no one is above the law

• The rule of law cannot exist without an enforcement mechanism (the courts)

Washminster system

A blend of the Westminster system of responsible parliamentary government with the American system of federalism.

Features adapted from the Westminster system (with brief explanation)

• English common law (Law based on precedents from past court cases rather than statutes)

• Bicameralism (Two houses of parliament)

• Westminster conventions (unwritten constitutional conventions)

• A constitutional monarchy (The head of state is an inherited position limited by a constitution) (we share the same monarch, represented by the governor general)

• Responsible government (The executive is drawn from and responsible to the legislature)

Features adapted from the US system (With brief explanation)

• Federalism (Sovereignty is divided between one national government and two or more regional governments)

• Strong bicameralism (Both houses of parliament are strong)

• The senate (a house of parliament to represent the interests of states)

• Written constitution (To outline the division of powers, among many other roles)

• A constitutional court to enforce the constitution

Ceremonial Executive (Constitutional executive)

• Comprised of the Governor General

• No reference to the prime minister in the constitution

• Acts on the advice of ministers

• Has no real power, only ceremonial roles

Political Executive (‘Real’ executive)

• Comprised of the prime minister and cabinet of ministers

• Holds the real power

• In theory, political executive is accountable to the parliament (responsible government), and prime ministers can be removed by parliament

• In reality, political executive controls parliament (as they have a majority)

• The party room removes the PM

Administrative Executive

• Comprised of the people who work in government departments carrying out policy

• Their bosses are the ministers

Chain of accountability (In regards to triple exec system)

• Public servants report to minister

• minister reports to parliament (question time, committees)

• parliament can theoretically remove ministers with a censure motion

• Parliament are responsible to the people (representative government at elections)

• Ministers are accountable to their behavior and the behaviors of people underneath them

Party Discipline

• Party discipline states that all members of the political party vote for their party’s bills in the Parliament

• Members of a political party are bound by the decisions of their party room and are not allowed to publicly disagree with their party’s position

Three roles of the legislature in Australia

Legislative role: make laws

Accountability role: the legislature acts as a check on the power of the executive (links to responsible government)

Representative role: We vote for our representatives, who are our voice in the decision making process (sections 7 and 24 ‘directly chosen by the people’)

What are the main roles of a court system?

Judicial review, criminal cases (offences against society that are written in the criminal code), civil cases (disputes between private citizens)

What are the secondary roles of a court system?

• Lawmaking role (Through statutory interpretation and common law precedent)

• Court of disputed returns (Challenging election results in the high court)

The high court in regards to appeals

The high court is the highest court of appeal, and there is no right to have an appeal heard (‘special leave’ must be given to appeal)

What does having court hierarchies allow?

• The division of work

  • Cases are distributed among courts to ensure the efficient use of judicial resources, with minor matters going to inferior courts and the most complex and serious cases going to superior courts

• Legal specialisation

  • Courts with special jurisdiction specialise in family law, juvenile justice, land disputes etc

  • Allows courts and judges to develop high levels of expertise in narrow areas of complex law, making faster, better decisions

• Appeals

  • Appeals hold lower courts accountable and improve justice

  • Courts with appellate jurisdiction hear appeals

• Doctrine of precedent

  • Legal precedents are created when courts deal with cases where no existing law applies, made by courts with appellate jurisdiction

  • A precedent is binding on lower courts and persuasive for courts in other hierarchies

What are laws

Laws are written codes created by sovereign political entities. They apply universally to all individuals within the law's jurisdiction.

What is power

Power is the capacity to compel others to behave in ways they may not choose voluntarily

What is jurisdiction

Jurisdiction refers to where the law has authority

• Geographical jurisdiction covers the land and sea areas where laws are applicable

• Legal jurisdiction refers to areas of law (Trade laws deal with imports, exports etc, Family Law deals with marriage, divorce, parenting etc)

Public law vs Private law

Public law regulates the conduct of individuals with society as a whole, while private law regulates the interactions of individuals with other individuals (people or businesses)

Hierarchy of different types of law

Constitutional law is the highest law and overrules any other law. Statute law is higher than common law as it is made by the parliament (representing the will of the majority)