Resurrecting Legislation

14 International Journal of Constitutional Law (I*CON) 518 (2016)

14 Pages Posted: 10 Apr 2019

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: March 27, 2016

Abstract

The principle of legislative discontinuity following elections is prevalent in democratic systems worldwide. It governs legislative systems as diverse as the US and the UK. Legislative discontinuity means that every parliament must start the legislative process anew, and pending bills from the previous legislature die. Only a few exceptional constitutional systems adopted the opposite rule of carryover, including the EU Parliament, the Netherlands, Switzerland, and Israel. One could infer from the dearth of research that this principle of discontinuity is insignificant. This article argues, however, that this seemingly technical principle should be regarded as one of democracy’s major tenets. The opposite rule of carryover detracts from the meaning of representative democracy. Discontinuity enables a deliberative democracy that takes into consideration minority rights, while carryover promotes a formalistic, majority-based democracy. Discontinuity establishes the legislature as the central arena for resolving controversial issues, while, under carryover, the center of gravity passes to executive government. Discontinuity treats elections as a key tool by which the voters determine the legislative agendas, but carryover treats the legislature as an eternally continuing body. Discontinuity regards parliament as independent and free to choose its own agendas, whereas carryover burdens the legislature with the agendas of its predecessors. Instead of equal elections, carryover prevents parliament members from enjoying an equal vote on legislation. The article further argues that the characteristics of the specific countries that adopted the rule of carryover — that is systems with frequent and protracted caretaker governments and/or bicameral systems — are the contexts most in need of legislative discontinuity. Countries that opted for the rule of carryover should thus reevaluate their position on the matter. The article contributes to the US debates about whether the Senate should be treated as a continuing body; to the UK’s attempts to insert flexibility into their rigid discontinuity principle; and to attempts to minimize the democratic deficit of the EU Parliament.

Keywords: legislative discontinuity, carryover of bills, parliamentary procedure, filibuster, continuing body, mandate theory, representation theory

Suggested Citation

Weill, Rivka, Resurrecting Legislation (March 27, 2016). 14 International Journal of Constitutional Law (I*CON) 518 (2016). Available at SSRN: https://ssrn.com/abstract=3361195

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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