COMPARATIVE LEGAL/POLITICAL SYSTEMS

1. COMPARATIVE LEGAL/POLITICAL SYSTEMS

2. TOTALITARIAN • Definition/Philosophy: • A political system in which total authority is exercized by a centralized government. There is no political diversity and dissent is not permitted. • This system is often variably termed autocratic and authoritarian. • The philosophy of totalitarian(ism) is based on the "top down" model. The leader is viewed as knowing the 'absolute truth,' to which all reasonable humans aspire.

3. TOTALITARIAN [con't…] • Philosophy (con't…): • It acquires credibility from the writings/teachings of: • PLAT0 [in The Republic] • NICCOLO MACHIAVELLI [ in The Prince] • THOMAS HOBBES [in The Leviathan] • MAXIMILIEN ROBESPIERRE [during the "Reign of Terror" - French Revolution] • KARL MARX [in Das Kapital]

4. TOTALITARIAN [con't…] • ORIGIN: • The "top down" model can be traced back to theearliest human societies. It is clearly outlined in such documents as The Code of Hammurabi (1750 BCE) and The Dead Sea Scrolls (circa 150 – 70 BCE). • It also formed the basis for social order in Ancient Egypt and the Greek City States. • In modern times, it is rooted in the philosophy of fascism, communism and militarism.

5. TOTALITARIAN [con't…]

6. TOTALITARIAN [con't…] • MODERN EXAMPLES: • The People's Democratic Republic of China • The Republic of Cuba • The Kingdom of Saudi Arabia • Myanmar [Burma] • The Republic of Fiji

7. TOTALITARIAN [con't…] • PUBLIC INFLUENCE: • While totalitarian states frequently hold elections, thereby encouraging public inclusion in the political process, there is no political diversity and the "inclusiveness" tends to be hollow. • Often this inclusion serves its greatest purpose as propaganda for the world community and as means of stopping political dissent.

8. TOTALITARIAN [con't…] • ADMINISTRATION OF LAWS: • The legal system in founded on the principle of the infallibility of the state. Therefore, all legal cases begin from the perspective that the state is correct and the individual is wrong; in other words, a presumption of guilt. • Therefore, it is the individual's responsibility to "prove his innocence". • Those found to be in violation of the law are often sent to be "re-socialized".

9. TOTALITARIAN [con't…] • LAWS SUSPENDED: • As is the case in most states, survival is the paramount goal. • Therefore, anything that threatens the survival of the state will trigger a legal/political process which will result in the suspension of all laws and the ‘legal apparatus’ – courts, legislative bodies, etc.

10. TOTALITARIAN [con't…] • COST/BENEFITS: • The most obvious and immediate cost/consequence of enshrining the totalitarian legal/political system into a nation’s constitution is the loss of ‘personal sovereignty’ for individuals and the tremendous erosion of ‘civil liberties’ for the collective [body politic]. • The most obvious and immediate benefit is the amount of resources a state can allocate to a crisis and the speed with which it can address the threat.

11. FEDERAL(ISM) A MAP OF MODERN FEDERAL STATES

12. FEDERAL(ISM) [con’t...] • Definition/Philosophy: • A political system in which political/law-making authority is constitutionally divided between two or more levels of government. • When the majority of this law-making authority is constitutionally allocated to the central government, it is termed “centralized federalism”. • When the majority of this law-making authority is constitutionally allocated to ‘other levels’ of government, it is termed “decentralized federalism”.

13. FEDERAL(ISM) [con’t...] Definition/Philosophy: (con’t...) • The philosophical basis is founded in the understanding that a group of people are bound together by a common culture/set of values/goals. This bond forms the basis for a foedus (Latin word meaning “covenant”). • As societies became larger and more divergent, it was possible – even likely – that multiple bonds/covenants formed.

14. FEDERAL(ISM) [con’t...] • Definition/Philosophy: (con’t...) • When these bonds/covenants became formalized in written constitutions, “federalism” was born. • Advocates of federalism are frequently called “federalists” – most notable in the development of the constitutions of the USA and Canada. • Non-federal states are termed unitary.

15. FEDERAL(ISM) [con’t...] • Definition/Philosophy: (con’t...) • Historically, federalism it most clearly rooted in pragmatic need rather than in altruistic or intellectual philosophy. • As human cultures began forming EMPIRE(s), a need evolved to “govern with the consent/acquiescence of the governed”.

16. FEDERAL(ISM) [con’t...] • ORIGIN: • The “multiple covenant" model can be traced back to several ancient human societies. The first clear example can be found in the Ancient Roman Empire. • The model established by Rome was replicated in the Holy Roman Empire (8th c - 19 c); the Byzantine Empire (15th c); the Spanish Empire (16th c); the British Empire (19th c); and the American Empire (21st c - ?). • In the past, the fulfillment of IMPERIAL aspirations was the goal, today, the goal is HEGEMONIC CONTROL.

17. FEDERAL(ISM) [con’t...]

18. FEDERAL(ISM) [con’t...] • MODERN EXAMPLES: • The Republic of the United States of America • Australia • Mexico • The Federal Republic of Germany • The Federative Republic of Brazil • The People’s Republic of China • The Russian Federation, etc.

19. FEDERAL(ISM) [con’t...] • PUBLIC INFLUENCE: • Modern federal states are frequently democratic and multi-party; reflecting the diversity of bonds/cultures/covenants. As a result, the public is directly or indirectly involved in the formation of government, the legislative process and the legal system. • Since law-making power is divided, separate processes are established outling the processes for public influence in each jurisdiction.

20. FEDERAL(ISM) [con’t...] • PUBLIC INFLUENCE: (con’t...) • In Canada, the authority for each jurisdiction to establish it own process for public involvement/influence is outlined in the Canadian Constitution Act, 1867. • Section 91, subsection 1, establishes such authority for the central government (Ottawa). • Section 92, subsection 1, established such authority for the provincial governments.

21. FEDERAL(ISM) [con’t...] • PUBLIC INFLUENCE: (con’t...) • In order for the public to exercise influence, it is first necessary to establish the correct level of government which has jurisdiction over the area of concern. • Central (“FEDERAL”) Government – Section 91. • PROVINCIAL Governments – Sections 92 & 93.

22. ADMINISTRATION OF LAWS: • Laws are created, amended, enforced and interpreted/applied by the level of government which has jurisdiction over the particular area. • In Canada, disputes over which level of government has jurisdiction in a particular area are resolved in the Federal Court. • Governments may not create laws in areas over which they do not have jurisdiction.

23. ADMINISTRATION OF LAWS: • If, in the opinion of the Court, a government is exceeding its jurisdiction, by creating a law in an area outside its jurisdiction, the Court may rule that the law is ULTRA VIRES (beyond the power of the government which created the law). • As a result, the law will be declared unconstitutional and of no force or effect.

24. ADMINISTRATION OF LAWS: (con't…) • If, in the opinion of the Court, a government is within its jurisdiction, by creating a law in an area which falls in the list of items identified in either the Canadian Constitution Act, 1867 or the Canadian Constitution Act, 1982, the Court may rule that the law is INTRA VIRES (within the power of the government which created the law). • As a result, the law will be declared constitutional.

25. LAWS SUSPENDED: • As is the case in most states, survival is the paramount goal. • Therefore, anything that threatens the survival of the state will trigger a legal/political process which will result in the suspension of all laws and the ‘legal apparatus’ – courts, legislative bodies, etc. • War Measures Act; Emergencies Act

26. COST/BENEFITS: • The most obvious and immediate cost/consequence of enshrining the federalism legal/political system into a nation’s constitution is the lessening of ‘national sovereignty’/a national identity. Additionally, it also tends to limit the "sovereignty of the majority" in a democracy. • The most obvious and immediate benefit is that it increases "sovereignty of the minority/regional groups" in a nation. • Additionally, it more easily accommodates diverse communities into one nation.