The Past, Present, and Future of Legislation with Supermajority

2025
Buch

Verfasst von: Boldizsár Artúr Szentgáli-Tóth
Buchreihe: Ius Gentium: Comparative Perspectives on Law and Justice
Verlag: Springer Nature Switzerland
Enthalten in: Springer Professional "Wirtschaft+Technik"; Springer Professional "Wirtschaft"

Über dieses Buch

This book revisits the main challenges raised by the implementation of supermajority legislation – a constitutionally prescribed subcategory of statutory norms that covers, at least in principle, the most important fields of legislation, and which is subject to stricter procedural requirements than the ordinary legislative process. The book puts the issue in a broader context, yielding valuable comparative insights.

It lays the theoretical groundwork for the interdisciplinary assessment of supermajority law concepts, which are ranked somewhere between the constitutional and statutory level in the legal pyramid. To cite the most important example, there is still no coherent standard to help constitutional courts decide whether individual statutory provisions should be covered by supermajority legislation or ordinary legislation. The three main points of departure are the following:

Firstly, the book posits that supermajority shall be distinguished from ordinary laws as a separate constitutional concept and a category of legal sources with a legal rank falling clearly under the constitution, but over ordinary laws. The second assumption states that due to several short-comings, the current procedural frameworks of supermajority law could not maximize its efficiency as a constitutional instrument. Other tools might better highlight the role of supermajority laws as safeguards vis-á-vis their currently mostly restrictive character. Thirdly, the book relies on the assumption that the current concept of supermajority law covers an overbroad range of statutes. Therefore, the volume argues for the necessity of narrowing the supermajority legislation to counterbalance the distortive effects of this framework.

In light of these three considerations, more legitimate alternative directions can be identified to further develop the existing main models: the scope of this legal instrument might be diminished; mandatory a priori review might be established; while the reconsideration of the legislative process; or the elaboration of precise contours for the hierarchy of norms might also be necessary.

This book is intended for policymakers, scholars and university students interested in understanding the mechanisms of parliamentary legislation in more depth.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Aims and Methods

Abstract

Supermajority law might be defined as a constitutionally prescribed subcategory of laws with a quasi-constitutional character, which covers, at least theoretically, the most crucial legislative fields and is subject to stricter procedural safeguards than the requirements of the ordinary legislative process. This definition identifies three main distinctive features of supermajority law: its special rank within the hierarchy of legal norms, somewhere between the constitution and ordinary laws; its stricter procedure of enactment vis-à-vis the ordinary legislative process; and its constitutionally prescribed scope of application, focusing at least in principle on the most crucial legislative fields.

The first chapter of the volume outlines the basic concept of supermajority law and the paramount constitutional concerns surrounding it. For this purpose, first, the aforementioned definition is detailed; then, the main questions and hypotheses of the book are presented. The methodology section describes the four main steps of the research: selecting constitutions that operate with supermajority law; comparing various supermajority law models around the world; assessing the five potential justifying arguments behind supermajority law; and formulating the proposed alternative model of this constitutional instrument.

Although this book falls primarily in the field of constitutional law, the complex analysis of supermajority law requires the meaningful involvement of several other scientific disciplines. Therefore, this chapter also explores the role of political science, decision-making theory, and sociology in tackling the constitutional challenges raised by the introduction of supermajority law.

Besides this, constitutional instruments classified under the category of supermajority law are mentioned under different denominations by national constitutions, which may cause considerable confusion. This chapter reflects this with a separate section devoted to various denominations of supermajority law, clarifying the terminological issues.

Boldizsár Artúr Szentgáli-Tóth

The Role of Legislative Supermajority: A Comparative International Overview

Frontmatter

Chapter 2. The Role of Legislative Supermajority: A Comparative International Overview

Abstract

Supermajority law has been implemented by more than fifty countries around the world; nevertheless, the broad comparative perspectives of this widespread legal concept have been explored by constitutional scholarship in a very limited manner. This chapter attempts to address this gap by providing a comparative insight into the various models of supermajority law around the world. All countries operating with this constitutional instrument have been involved in the analysis; however, the intensity of dogmatic debates on the matter and the availability of relevant sources gave primary weight to France, Spain, and Hungary.

The chapter begins with the historical points of reference: the constitutional development of the Third French Republic meant a direct predecessor of current French organic laws. The three main waves of spreading supermajority law around the world have also been distinguished. Firstly, France introduced organic laws into the Constitution of the Fifth Republic in 1958, which was followed by a number of Francophone African countries. Secondly, one and a half decades later, the democratic Constitution of Spain also implemented organic law, which later appeared in a number of Latin American constitutions. Thirdly, the Central European democratic transition after the fall of the communist dictatorship again gave birth to various supermajority law concepts around the region.

The chapter illustrates the multiple models of defining legal rank, procedural rules, and the scope of supermajority law, and also highlights the partly intentional, partly incidental migration of a constitutional idea. The comparison helps to classify supermajority law models based on the applicable level of parliamentary majority and further safeguards; the method of determining its legal rank; and the potential inclusion of institutional matters, fundamental rights, and/or public policy issues among the supermajority legislative fields.

Boldizsár Artúr Szentgáli-Tóth

The Potential Justifications of Supermajority Law

Frontmatter

Chapter 3. Supermajority Law as the Extension of the Constitution

Abstract

This chapter conceptualizes how supermajority laws could be seen as quasi-constitutional norms, which confer almost the same protection on these laws as on the constitution itself. Certain potential benefits are also mentioned; however, the envisaged disadvantages urge an exact constitutional orientation on the legal rank of supermajority law.

The expansion of the constitution undermines its unique and coherent character as the supreme norm at the top of the whole legal pyramid. Whether the formal or the substantial aspects of this coherence are investigated, both could be undermined if a clear distinction is not established between the constitution and supermajority laws. Supermajority laws with quasi-constitutional character could even contradict the constitution, which could considerably reduce constitutional authority.

The other side of this coin requires a strong differentiation between supermajority and ordinary laws, which has been consistently rejected by several constitutional courts and academic scholars. On the contrary, I argue for the necessity of a clear hierarchy between supermajority and ordinary laws to avoid confusion between the supermajority and the ordinary legislative process. With this step, the confusion of supermajority and ordinary statutory provisions within the same law would cease; the task of the constitutional courts would be facilitated in providing the same level of constitutional protection for both the supermajority and ordinary legislative domains.

The arguments presented in Chap. 3, along with those detailed in Chap. 4, lead to the proposed constitutional clarification of supermajority’s legal rank to be proposed in Chap. 9. According to my proposal, supermajority would appear as a separate category of legal sources within the constitution, and its position would be clearly placed under the constitution but above ordinary laws in this revamped model.

Boldizsár Artúr Szentgáli-Tóth

Chapter 4. Supermajority Law as an Instrument for Promoting the Stability of the Constitution

Abstract

Various instruments serve the stability of constitutions, as too frequent amendments could significantly undermine the authority of the constitution on the top of the legal piramid. The required parliamentary consent or the approval of a referendum for constitutional amendments, the competence of the constitutional court to review substantial constitutional amendments, and the hierarchy between constitutional provisions, as well as the unamendable constitutional articles, could contribute to the development of constitutional rigidity.

Analyzing further the legal rank of supermajority law, this legal instrument might be interpreted as a further stabilizing mechanism protecting the constitution. Several reform attempts could succeed with the amendments of supermajority laws, which would leave the constitution untouched. Nevertheless, this potential stabilizing impact would be significantly weakened by the detailed incompatibilities between supermajority law and other constitutional stabilizers on the one hand, and numerous uncertainties surrounding the legal rank and the scope of supermajority law on the other hand. For these reasons, supermajority might be considered a less effective tool for serving constitutional rigidity.

The chapter also evaluates the special role of supermajority laws during transitory periods, especially during democratizations, when neither political actor could foresee the outcome of the forthcoming pluralist elections. For this reason, the inclusivity of the legislative process, underlined by the implementation of the supermajority requirement, serves the interests of all political parties, especially in those countries where regional or ethnic diversity might threaten the territorial integrity of the country. The chapter conceptualizes the relevance of the stabilizing role vested in supermajority law during these periods, which would be questioned once the bases of democratic constitutionalism have been crystallized.

Boldizsár Artúr Szentgáli-Tóth

Chapter 5. Supermajority Laws as Instruments to Construct Political Compromise

Abstract

Depending on the exact procedural rules of the supermajority legislative process, the implementation of supermajority law will considerably influence the political discourse. This impact is understood more deeply through the analysis of four paramount issues.

Firstly, supermajority law is considered from the perspective of different political actors. One would conclude that strong political parties, either on the governmental or the oppositional side, will favor this legal instrument because the broad consent requirement would centralize the political spectrum dominated by two or three influential political parties. By contrast, the elevated majority would reduce the influence of smaller political formations on the decision-making process.

Secondly, the interdependence between the supermajority law concept and the electoral system should be taken into account. If the electoral system operates mainly on the majoritarian principle, political parties with meaningful support would have a greater chance of gaining a parliamentary supermajority, while the proportional electoral framework would produce a controversial effect.

Thirdly, if a vote of confidence could also be attached to the votes on supermajority bills, the parliament would have more opportunities to dismiss the government if its parliamentary trust has decreased.

Fourthly, supermajority law imposes additional difficulties on minority governments: without astable parliamentary majority, it would be almost impossible to secure supermajority support for governmental bills. As a consequence, minority governments would almost disappear from countries operating with supermajority.

These considerations will be relevant for each form of supermajority law; however, the stricter form of supermajority stipulated by the constitution would have a stronger political impact.

Boldizsár Artúr Szentgáli-Tóth

Chapter 6. Supermajority Laws as a Means of Protecting Fundamental Rights

Abstract

The scope of supermajority law may cover fundamental rights, institutional matters, and public policy fields; however, the third subcategory is considered a rare one. Regarding fundamental rights, this chapter firstly gives insight into the emergence of fundamental rights protection during the last three centuries and also outlines the latest tendencies in this regard.

The chapter argues that although supermajority law might be seen as a major safeguard of fundamental rights protection during transitory moments, this idea may lose its relevance when a complex combination of international mechanisms and national remedies stands at the disposal of those whose fundamental rights are supposed to be violated. International courts and monitoring mechanisms, such as national constitutional courts, ombudspersons, and ordinary courts, devote significant effort to promoting the protection of fundamental rights. This could explain why the proportion of fundamental rights gradually decreases globally among fields of supermajority legislation.

Nevertheless, this legal instrument still holds a meaningful role in the protection of fundamental rights through the coverage of the status, organization, and competences of various key institutions responsible for safeguarding fundamental rights (such as the constitutional court, the ombudsperson, or the judiciary).

If supermajority law regulates fundamental rights themselves, such as freedom of expression or the right to assembly, one can classify this as contributing directly to the protection of fundamental rights. By contrast, when the key institutions protecting fundamental rights are covered by the supermajority requirement, this means the indirect aspect of fundamental rights protection. This chapter distinguishes between these two aspects and argues that the indirect aspect may be sufficient when the scope of supermajority law is determined.

Boldizsár Artúr Szentgáli-Tóth

Chapter 7. Supermajority Laws as Factors of Separation of Powers

Abstract

In most of the relevant constitutions, supermajority law covers institutional fields; this explains why some authors mention these norms as institutional acts. The vast majority of supermajority legislative fields in the various constitutions regulate the status, organization, and competences of crucial constitutional actors. This not only impacts the operation of these constitutional actors themselves, but also their relationships, which also influence the contours of the separation of powers. The chapter outlines three main relations where this effect might be plausible: the relationship between the government and the parliament; the relationship between the government and the constitutional court; and the relationship between the current government and future governments.

Since the pro-government parliamentary majority should negotiate with the opposition from the enactment of supermajority laws, the weight of the opposition in the decision-making process would increase, and the excessive entanglement between the government and the parliament would disappear. As a consequence, the parliamentary opposition could impose more pressure on the government by blocking certain governmental initiatives or by exploiting the traditional tools of parliamentary control.

The constitutional court would be granted an additional power if it could review compliance with the supermajority legislative process, as well as the coherence between the constitution, supermajority laws, and ordinary laws. However, this competence could easily involve the constitutional court in sharp political debates.

The current government could significantly narrow the margin of movement for its successors, especially when a parliamentary supermajority stands behind the government. If a supermajority law is passed, future governments would have a difficult task in gaining the same parliamentary support for the amendment or the overrule of that law.

The chapter details these three aspects of the separation of powers.

Boldizsár Artúr Szentgáli-Tóth

The Perspectives of Supermajority Law

Frontmatter

Chapter 8. Proposals for Future Constitution-Making Processes

Abstract

After having carefully considered the five main potential justificative arguments behind supermajority law, this chapter conceptualizes the main directions for looking for alternative models of this constitutional tool. The chapter refers back to the three distinctive features of supermajority law and focuses on its legal rank, its special procedural rules, and its scope of application.

Firstly, the uncertainties around the legal rank of supermajority law are highlighted, and the need for clarifying its position within the hierarchy of norms is underlined. Moreover, supermajority and ordinary legislative provisions should be clearly separated; neither act should contain provisions from both categories.

Secondly, the main components of the revamped supermajority legislative procedure are sought. For this reason, the chapter considers the possibility of establishing a separate parliamentary commission dealing exclusively with supermajority laws, and also potentially determining the minimum time limit to be allocated for the parliamentary debate of each supermajority bill.

The stronger demand for social participation might also distinguish supermajority and ordinary legislative processes: meaningful social consultations might be required before the parliamentary enactment of any supermajority law.

Besides this, mandatory prior constitutional review of supermajority laws to be conducted by the constitutional court may confer an additional safeguard on the constitutionality of supermajority laws.

Thirdly, the scope of supermajority law might be narrowed: it could cover the status, organization, and competences of the key institutions of the state; fundamental rights could be protected through the safeguarding of these constitutional actors.

Boldizsár Artúr Szentgáli-Tóth

Chapter 9. The Proposed New Model of Supermajority Law

Abstract

The concluding chapter outlines the proposed alternative model of supermajority law, which might be worthy of consideration for future constitution-making processes. This framework relies on three main components.

Firstly, the constitution is supposed to provide expressly for supermajority as a separate category of legal norms, and its legal rank should be specified under the constitution, but above ordinary laws. This would mean that supermajority laws would be strictly separated from both the constitutional provisions and the ordinary statutory rules. This model would not only ensure the coherence of the constitution but also the prevalence of supermajority laws over ordinary laws in cases of contradictions.

Secondly, an absolute parliamentary majority would be required for the enactment or amendment of supermajority laws. Apart from this, as part of the revamped supermajority legislative process, a separate parliamentary commission would be set up to hear exclusively supermajority laws. As a last procedural element, the constitutional court would mandatorily rule on the constitutionality of the enacted supermajority law before its promulgation, within a constitutionally provided short deadline. A narrow circle of constitutional actors could also submit their opinions to the constitutional court.

Thirdly, supermajority law would cover just the status, organization, and competence of seven to eight key constitutional actors; therefore, its scope of applicability would be significantly narrowed.

This proposed model of supermajority law should obviously be adapted to the individual circumstances of each country; however, it may serve as a point of reference for the drafters of any constitutional amendment wherever a certain form of supermajority law has already been implemented.

Boldizsár Artúr Szentgáli-Tóth

Chapter 10. Closing Remarks

Abstract

In my work, I mainly aimed at laying down initial proposals to raise new perspectives that could serve to improve the concept of supermajority law. Profoundly tailored amendments require an inclusive academic and political dialogue with all stakeholders in the countries concerned on the future of supermajority laws in the coming years. Political parties, constitutional scholars and legal theorists, as well as legal practitioners and social organizations, can play a key role in this process. When considering the future of supermajority laws, it should be borne in mind that a combination of main constitutional principles, domestic traditions, comparative insights, and innovative solutions can lead to the elaboration of the most favorable solutions. My endeavors presented here make a modest contribution to this tough process.

Boldizsár Artúr Szentgáli-Tóth

Metadaten
Barrierefreiheit

Titel: The Past, Present, and Future of Legislation with Supermajority
Verfasst von: Boldizsár Artúr Szentgáli-Tóth
Verlag: Springer Nature Switzerland
Electronic ISBN: 978-3-031-99324-4
Print ISBN: 978-3-031-99323-7
DOI: https://doi.org/10.1007/978-3-031-99324-4

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Über dieses Buch

Inhaltsverzeichnis

Frontmatter

Chapter 1. Aims and Methods

The Role of Legislative Supermajority: A Comparative International Overview

Frontmatter

Chapter 2. The Role of Legislative Supermajority: A Comparative International Overview

The Potential Justifications of Supermajority Law

Frontmatter

Chapter 3. Supermajority Law as the Extension of the Constitution

Chapter 4. Supermajority Law as an Instrument for Promoting the Stability of the Constitution

Chapter 5. Supermajority Laws as Instruments to Construct Political Compromise

Chapter 6. Supermajority Laws as a Means of Protecting Fundamental Rights

Chapter 7. Supermajority Laws as Factors of Separation of Powers

The Perspectives of Supermajority Law

Frontmatter

Chapter 8. Proposals for Future Constitution-Making Processes

Chapter 9. The Proposed New Model of Supermajority Law

Chapter 10. Closing Remarks