scholarly journals Qualified laws as actors of the separation of powers

2021 ◽  
Author(s):  
Boldizsár Szentgáli-Tóth
Keyword(s):  
Constitutional Law ◽  
Separation Of Powers ◽  
Legislative Process ◽  
Constitutional Review ◽  
Legal Instrument ◽  
Constitutional Principle ◽  
Qualified Majority ◽  
Legal Nature ◽  
Political Groups

Abstract Over the last few decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules than the requirements of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislation, and are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. It is beyond doubt that this legal instrument influences the prevalence of the separation of powers and the constitutional principle of democracy in a remarkable way; therefore, it might be an important tool for populist politicians to concrete their preferences for the long term. In this study, my aim is to conceptualize the most highly contested issues regarding the legal nature of qualified laws, and to provide a deeper understanding of the interdependence between qualified laws and the separation of powers. This analysis might also clarify how qualified laws may serve the ambitions of populist political groups in certain specific circumstances. My contribution provides general theoretic considerations, and does not outline the particular constitutional frameworks in detail. I would rather just use the specific examples to demonstrate how the mechanism of qualified law works in practice as an instrument of constitutional law.

scholarly journals Organic laws and the principle of democracy in France and Spain

Pro Futuro ◽  
2020 ◽  
Vol 9 (4) ◽  
Author(s):  
Boldizsár Szentgáli-Tóth
Keyword(s):  
Legislative Process ◽  
Legal Systems ◽  
Ideal Model ◽  
Constitutional Review ◽  
Qualified Majority ◽  
Legal Nature ◽  
The Relationship ◽  
Proper Solutions

During the last decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules than that of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislature, and they are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. In this study, I compare the experiences of two crucial legal systems, France and Spain, which provide two different frameworks of qualified law. My aim is to identify the most contested issues from the legal nature of qualified laws, and to seek the proper solutions of these issues, as well as an ideal model of qualified law. My contribution focuses on the relationship between qualified laws and the principle of democracy, and aims to open up new perspectives in this regard.

Legislation and Legislative Process in Eastern Europe

2021 ◽  
Vol 1 (1) ◽  
pp. 73-108
Author(s):  
Zsolt Szabó ◽  
Herbert Küpper
Keyword(s):  
Eastern Europe ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Legislative Process ◽  
The Rule Of Law ◽  
Structural Problems ◽  
The People ◽  
Apparent Homogeneity ◽  
Qualified Majority ◽  
The Eu

Abstract The study describes and systemises the constitutional requirements on legislation in Eastern Europe. The comparison reveals that the basic structures of the legislative process live up to the standards of the rule of law. The details, however, are quite frequently deficient or problematic. Laws requiring a qualified majority often cause structural problems, based on poor political culture, and the vague and contradictory regulatory framework. Other problems are a legacy of socialism, e.g. the instrumental perception of the law, or the immature separation of powers. However, the apparent homogeneity of the region and its structural problems that was typical of the socialist era, has given way to a stronger differentiation which often reflects differences that existed prior to the socialist dictatorship. This stronger differentiation concerns, i.a. the extent of executive law-making, the structure of parliament (mono- or bicameral), the majority requirement for the decisions in parliament, and the participation of the people in legislation. In the states that have joined the EU, the European criteria of the rule of law have had their effect, whereas the candidate states on the Wester Balkans are on the way of consolidating their legislative system. Further to the East, the rule of law becomes weaker and weaker.

scholarly journals ¿Puede la mayoría cualificada socavar la democracia? El caso de Hungría

2018 ◽  
pp. 419
Author(s):  
Boldizsár Szentgáli Tóth
Keyword(s):  
Risk Factor ◽  
Legal Framework ◽  
Historical Background ◽  
Legislative Process ◽  
Constitutional Review ◽  
Qualified Majority ◽  
Historical Role ◽  
And Function ◽  
Legal Character ◽  
Role And Function

Este estudio se centra en las llamadas Leyes Cardinales en Hungría. El principal objetivo es entender mejor el concepto, especialmente su rol histórico y su funcionamiento dentro del ordenamiento del país, a lo largo de la transición a la democracia, y en la actualidad. Se destacará la importancia de este tipo de normas cuando existe una mayoría parlamentaria cualificada. A lo largo de las últimas décadas diversos países han adoptado una subcategoría especial de Ley, para cuya aprobación se exigen normalmente reglas procedimentales más estrictas que para las ordinarias, y que suelen exigir mayorías cualificadas, aprobándose por las dos Cámaras Legislativas, y sujetas a revisión constitucional previa, antes de su entrada en vigor. En general, gozan de exigencias mayores y de controles más severos que las leyes ordinarias. Después de definir la noción, y de hacer un breve repaso por la escena internacional así como por otras cuestiones introductorias, se centra la atención en tres aspectos: el bagaje histórico que presentan, las materias que regulan, y los caracteres que más destacan. En cada uno de ellos se comparará el caso húngaro con el caso español para demostrar cómo las Leyes Cardinales pueden ser consideradas un factor de riesgo para la democracia, y por qué no sucede lo mismo para el caso de España.This study focuses on the so-called «cardinal laws» in Hungary: my primary purpose is to provide a better understanding of this concept, and especially to conceptualize the historical role and function of this legal framework in Hungary, during the democratic transition, and even nowadays. Particular highlight will be given to the special impact of cardinal laws under qualified parliamentary majority. During the last decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules, than the requirements of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislation, they are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. After having defined qualified law, and having provided a brief international overview, and outlined some further introductory considerations, I would focus on three aspects in Hungary: the historical background, the scope of qualified law, and the legal character of these norms. Under each point, the Hungarian development would be compared to the Spanish experience to demonstrate, why could be cardinal laws considered as a risk factor for democracy, and why this approach is not relevant as regard Spanish organic laws.

Executive Leadership and the Legislative Process

2019 ◽  
pp. 79-112
Author(s):  
Jonathan Malloy ◽  
Paul J. Quirk
Keyword(s):  
Political Party ◽  
Separation Of Powers ◽  
Executive Leadership ◽  
Party Systems ◽  
The United States ◽  
Legislative Process ◽  
Long Run ◽  
Political Conditions ◽  
The U.S

This chapter examines executive leadership and the legislative process in the United States (U.S.) and Canada. The U.S. has a separation-of-powers or presidential system while Canada has a parliamentary system. The constitutional differences do not produce predictable differences in policymaking performance, but they have crucial consequences in interaction with other political conditions. In particular, their effects depend heavily on variable conditions of the two countries’ electoral and political party systems. To explore these effects, the chapter distinguishes two major aspects of policymaking performance: (1) ideological direction and change and (2) policy competence. Over the long run, both systems have tended toward moderation and incrementalism. Canada has probably had an advantage with respect to competence. In recent years, developments in the respective party systems have challenged the long-term moderation of Canadian policymaking and have produced gridlock and episodes of serious incompetence in the U.S.

A Moral Map of Constitutional Polyphony

2017 ◽  
Author(s):  
Dimitrios Kyritsis
Keyword(s):  
Constitutional Law ◽  
Separation Of Powers ◽  
Division Of Labour ◽  
Moral Claim ◽  
Political Regimes ◽  
Checks And Balances ◽  
Constitutional Review ◽  
State Institutions ◽  
Intrinsic Values ◽  
Government Power

This chapter articulates the conception of separation of powers that underpins the account of constitutional review advanced in this book. Like all constitutional law, separation of powers must be understood as a legitimacy enhancer: political regimes that conform to it make a stronger moral claim to the allegiance of their citizens. Separation of powers achieves this by structuring cooperation among state institutions in accordance with two imperatives—division of labour and checks and balances. The first imperative dictates (a) that government tasks be assigned to those bodies that can carry them out efficiently or in a way that instantiates relevant intrinsic values such as fairness, and (b) that other bodies respect each other’s contribution. The second imperative dictates that mechanisms be put in place for effectively monitoring government power and averting its misuse.

International law in Japanese Courts

2019 ◽  
pp. 536-547
Author(s):  
Hiromichi Matsuda
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Positive Attitude ◽  
Separation Of Powers ◽  
Democratic Legitimacy ◽  
Global Community ◽  
Constitutional Review ◽  
Relative Lack ◽  
The Supreme Court

This chapter examines international law in Japanese courts in the context of separation of powers, treaty-making procedure, and transnational judicial dialogue under the Japanese Constitution. It analyzes international law in Japanese courts in the following four categories: (1) constitutional review of international law; (2) judicial application of international law; (3) consistent interpretation of statutory and constitutional law with international law; and (4) reliance on persuasive authority in constitutional interpretation. Although Japanese courts are reluctant to use international law as binding law, the Supreme Court of Japan recently began actively referring to foreign and international sources as persuasive authorities. Because of the practice of “implementing-legislation-perfectionism” and the relative lack of democratic legitimacy of international law, Japanese courts will probably continue to take a restrictive approach toward applying binding international norms. In contrast, the Supreme Court of Japan is expressing a positive attitude toward transnational dialogue. Japanese courts will probably expand and enhance transnational judicial dialogue in and out of the courtroom. This chapter concludes that Japanese courts have the potential to be one of the interesting benchmarks for whether any existing “global community of courts” can really be global and universal.

Women's Participation in Politics: Ukrainian Case

2014 ◽  
Vol 2013 (3) ◽  
pp. 53-66
Author(s):  
Skovikov Alexey
Keyword(s):  
Political Culture ◽  
Separation Of Powers ◽  
Party Competition ◽  
Political Life ◽  
Ruling Class ◽  
Political Actors ◽  
Women's Participation ◽  
Democratic Transformation ◽  
Selection Of

AbstractThe international practices takes into account the question of women's participation in the political life of modern Ukraine. The selection of the state was due to the dynamic process of democratic transformation - the separation of powers, the formation of multi-party competition among political actors in the electoral process, the activity women in the various institutions of civil society. The position was claimed on the basis of empirical data range of academic institutions and reputable sociological centers, and also interviews with experts who said that the creation of real conditions for self-realization by women's interest in politics is only possible for long term. The process is controversial and caused by political culture, traditions and interests of the ruling class represented mainly by men.

Public Awareness and the Behavior of Unpopular Courts

2020 ◽  
pp. 1-19
Author(s):  
Jay N. Krehbiel
Keyword(s):  
Separation Of Powers ◽  
Formal Model ◽  
Public Awareness ◽  
Public Support ◽  
The European Union ◽  
Negative Consequences ◽  
Liberal Democracies ◽  
Constitutional Review ◽  
Institutional Stakeholders

Abstract Scholars have long debated the positive and negative consequences of an aware public for the quality of governance in modern liberal democracies. This article extends this debate to the context of constitutional review by exploring how public awareness can limit the effective exercise of review by courts lacking strong public support. Incorporating aspects of both the legitimacy and separation of powers theories on judicial power, the author argues that public awareness weakens the efficacy of such unpopular courts by creating an electoral incentive for governments to defy adverse rulings, even when doing so may lead to punishment from other institutional stakeholders. The article develops a simple formal model that identifies how and under what conditions public awareness can influence an unpopular court's decision making. An analysis of rulings issued by the Court of Justice of the European Union finds support for the model's empirical implications.

Policy Entrepreneurship in Government: An American Study

1986 ◽  
Vol 6 (3) ◽  
pp. 225-253 ◽  
Author(s):  
Theodore R. Marmor
Keyword(s):  
Social Insurance ◽  
Separation Of Powers ◽  
Fiscal Stress ◽  
American Study ◽  
Public Administrators ◽  
Insurance Policy ◽  
Policy Entrepreneurship ◽  
Policy History ◽  
Expansion Period

ABSTRACTThis essay contrasts the careers of Robert Ball and Wilbur Cohen, two American public administrators who have devoted fifty years to America's social insurance institutions, with other types of public actors, especially the in and outer rising spirally across departments, policies and administrations. America's separation of powers and federalism reward with influence those who combine entrepreneurial energy, long-term program commitment, and managerial skill; other political structures provide different patterns of opportunities and constraints. It then applies this perspective to Ball and Cohen's participation in three periods of American social policy history: the formation of federal social insurance policy (1935 to 1950); the expansion period (1950–1970); and the turbulent period of stagflation and fiscal stress (1972 to the present).

Sophistry, Security, and Socio-Political Structures in the American Revolution; or, Why Jamaica did not Rebel

1986 ◽  
Vol 29 (2) ◽  
pp. 319-344 ◽  
Author(s):  
T. R. Clayton
Keyword(s):  
North America ◽  
British Empire ◽  
American Revolution ◽  
North American ◽  
Western Hemisphere ◽  
American Colonies ◽  
Constitutional Principle ◽  
Mother Country ◽  
Political Structures

Britain's most important American colonies did not rebel in 1776. Thirteen provinces did declare their independence; but no fewer than nineteen colonies in the western hemisphere remained loyal to the mother country. Massachusetts and Virginia may have led the American revolution, but they had never been the leading colonies of the British empire. From the imperial standpoint, the significance of any of the thirteen provinces which rebelled was pale in comparison with that of Jamaica or Barbados. In the century before 1763 the recalcitrance of these two colonies had been more notorious than that of any mainland province and had actually inspired many of the imperial policies cited as long-term grievances by North American patriots in 1774. Real Whig ideology, which some historians have seen as the key to understanding the American revolution, was equally understood by Caribbean elites who, like the continental, had often proved extremely sensitive on questions of constitutional principle. Attacks of ‘frenzied rhetoric’ broke out in Jamaica in 1766 and Barbados in 1776. But these had nothing whatsoever to do with the Stamp Act or events in North America.

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