Theory and Practice of Legislation最新文献

{"title":"Parliamentary oversight under the Covid-19 emergency: striving against executive dominance","authors":"Elena Griglio","doi":"10.1080/20508840.2020.1789935","DOIUrl":"https://doi.org/10.1080/20508840.2020.1789935","url":null,"abstract":"ABSTRACT The Covid-19 emergency has profoundly challenged the interactions between the legislative and the executive branches of government: while executives have assumed a predominant role in law-making, parliaments are being increasingly marginalised. In the circumstances, many factors make parliamentary oversight of the executive a strategic function for the democratic legitimacy of policy-making. Evaluating the role of parliaments in this domain is the main purpose of this article. It traces and assesses oversight initiatives started by parliaments in Europe in order to evaluate: what types of interaction they are developing with the executives; whether the oversight procedures have been changed, either in a temporary or permanent way; and what sort of influence the oversight function has had on the final outcome of decision-making. The comparative analysis demonstrates that parliaments have followed a realistic and incremental approach to ensure continuity of executive oversight, prioritising the mechanisms that they deemed to be strategic and also feasible in terms of logistical arrangements. Drawing on the lessons learned from this experience, it is questioned whether some of the new oversight (digital) practices should be made permanent. It is argued that prospectively an appropriate and full use of oversight prerogatives will be the marker of parliaments’ ability to create opportunity out of the crisis.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1789935","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46516573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"COVID-19 in Hungary and Poland: extraordinary situation and illiberal constitutionalism","authors":"Tímea Drinóczi, A. Bień-Kacała","doi":"10.1080/20508840.2020.1782109","DOIUrl":"https://doi.org/10.1080/20508840.2020.1782109","url":null,"abstract":"ABSTRACT Hungary and Poland have started their illiberal remodelling in 2010 and 2015 respectively. Both governments routinely apply the illiberal version of the Rule of Law (illiberal legality), which involves that every situation has the potential to be exploited for political gain. Both states opportunistically apply their constitutions and selectively invoke favourable constitutional provisions. And yet, this paper claims that the Hungarian Fundamental Law and the Polish Constitution are equipped with adequate emergency measures to provide for a proper framework for emergency legislation. In illiberal emergency constitutionalism, Hungary uses and abuses its Fundamental Law, while Poland is disregarding its binding 1997 Constitution and, at the same time, creates its new invisible illiberal constitution. This paper explores how it is done during the current human pandemic crisis by focusing on, first, the emergency regimes the constitutions provide for and their (non-)application. Second, it compares the operation of the parliaments as the Sejm chaotically passes crisis management related omnibus legislation and amendments on the presidential election during the extra-constitutional ‘state of epidemic’. The Hungarian Parliament operates under the ‘danger of crisis’. Yet, it still delivers regular legislative activities, as the emergency ‘legislation’ is done through governmental decree as per the Coronavirus Act 2020, which is unconstitutional. These phenomena necessitate an in-depth inquiry about the nature, form, and content of the Hungarian and Polish emergency legislation and governmental decrees. It is concluded that, under normal circumstances, the Hungarian and Polish constitutional measures set for guiding the authorities in emergencies are adequate. In the current political and constitutional setting and COVID-19 crisis, the form and the content of some essential Hungarian and Polish emergency measures stay below standards. It is a further warning sign for the European community to take Hungarian and Poland illiberal constitutionalism seriously. Their pushing the envelope will not end by itself.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1782109","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46831422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Covid-19 meets politics: the novel coronavirus as a novel challenge for legislatures","authors":"I. Bar-Siman-Tov","doi":"10.2139/ssrn.3603137","DOIUrl":"https://doi.org/10.2139/ssrn.3603137","url":null,"abstract":"ABSTRACT Much attention has been given to the challenge posed by the covid-19 pandemic to people's health, to public health systems and to the global economy. Insufficient attention has been given to the challenge posed by the 2019 novel coronavirus to legislatures, the vital organ of democracy. This article develops a comprehensive analysis of the multiple ways in which the pandemic challenges legislatures and their operation, drawing on illustrative examples from various countries around the world. It argues that covid-19 poses a unique and complex challenge for legislatures; resulting from the characteristics of this pandemic and the ways they interact with the fundamental institutional features of legislatures; the typical demographic traits of legislators; the psychological biases that can prejudice legislatures’ ability to evaluate the risk; and the effects of emergencies on legislatures. The article then delves into an in-depth case study analysis of Israel to analyze how the pandemic particularly challenges parliaments in countries where covid-19 coincides with a pre-existing political crisis. By understanding the complex challenges posed by covid-19 on parliaments, we can help ensure that parliaments, and perhaps ultimately democracy itself, would not become casualties of covid-19.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47349051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The COVID-19 emergency in the age of executive aggrandizement: what role for legislative and judicial checks?","authors":"Jan Petrov","doi":"10.1080/20508840.2020.1788232","DOIUrl":"https://doi.org/10.1080/20508840.2020.1788232","url":null,"abstract":"ABSTRACT Extraordinary limitation of certain fundamental rights seems necessary in fighting the COVID-19 pandemic. Many countries have declared a state of emergency for that purpose. Yet, there is also a risk of misusing the emergency for power grabbing, especially in the current era of executive aggrandizement, democratic decay and abusive populist constitutionalism. In this setting the legislative and judicial checks on the executive create a dilemma. Their standard operation in the state of emergency could control the executive, but might also impair its capacity to fight the pandemic effectively. This article therefore focuses on the desired role of the legislature and the judiciary in COVID-19 emergencies. Although many constitutions address emergencies, they are often vague and leave considerable room for the involved actors themselves to adjust their behaviour. This article asks how parliaments and courts should use this de facto room. I argue that they should show some deference to the executive, its level depending on the stage and severity of the crisis, but should not clear the field for governments. They must modify their activities but not suspend them. My main argument is that the deliberative and scrutiny functions of the legislature and the dispute-resolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness of emergency measures by improving conditions necessary for compliance. The legislature and courts can contribute to the higher feasibility and legitimacy of the emergency measures and thereby increase voluntary compliance, which is crucial for tackling the spread of the new coronavirus. The article illustrates these issues by way of the case study of the Czech Republic – a country experiencing its first nationwide state of emergency amid tendencies towards democratic decay and managerial populism.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1788232","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46454365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislative response to Coronavirus (Switzerland)","authors":"Felix Uhlmann, Eva Scheifele","doi":"10.1080/20508840.2020.1783076","DOIUrl":"https://doi.org/10.1080/20508840.2020.1783076","url":null,"abstract":"ABSTRACT The Coronavirus is a stress test not only for society but also for the legal order. It is usually the government first to respond. Still, Parliaments play an important role in the time of crisis as well. This is especially the case the longer the pandemic lasts. The Swiss Federal Parliament has seized its operations early in the pandemic. It has reconvened in May for an extraordinary session. The main topic of this session was the approval of the government’s emergency measures. It was expected that the Parliament will also debate initiatives for emergency law from its members and that it will decide on its modus operandi. Also, the decision for an abortion of the session at the wake of the crisis was discussed. Proposals are to be expected to allow sessions by video conference. The paper will deal with the aforementioned questions from a legal perspective. It will analyse the nature of and the relationship between emergency law by the executive and the legislative branch. It focuses on the function of Parliament and its modus operandi in the moment of crisis. It will refer mostly to the Swiss Federal Parliament but will also, especially in comparison, take a look at cantonal law and practice. Some preliminary conclusions are offered at the end of the paper.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1783076","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41373938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The impacts of the COVID-19 crisis on the Brazilian legal system – a report on the functioning of the branches of the government and on the legal scrutiny of their activities","authors":"V. Pinheiro, Marcelo Ilarraz, Melissa Terni Mestriner","doi":"10.1080/20508840.2020.1790104","DOIUrl":"https://doi.org/10.1080/20508840.2020.1790104","url":null,"abstract":"ABSTRACT The article aims to describe and examine the different responses to the current Covid-19 crisis taken by the top offices of political Branches in Brazil: federal executive, National Congress and the Supreme Court. The article will show that state-level officials took most public health actions in Brazil, what gave rise to a clash between the President and Governors about who has authority to decide about public health measures. The federal executive, so far, has been more concerned with the economic responses to the imminent mass unemployment and household crisis. The National Congress has adapted its deliberation operations moving to a ‘remote deliberation system’, with extremely short deadlines and not exclusively related to covid-19 issues. In practice, this has made almost daily debate and deliberation on both Chambers Floor possible about dozens of measures, which will be briefly described in the paper. Notwithstanding the unprecedented technological innovation, there is still room for improvement. The Brazilian Supreme Court has also taken important decisions in the current situation. The decisions restricted the federal executive authority to deal with the crisis: the Court ruled that Federal Law n° 13.979/2020 cannot restrain state and municipal authorities from adopting public health policies against the virus spreading; the federal executive cannot reduce the publicity of administrative acts during the crisis and it is prohibited from instructing or advertising the population against scientifically agreed measures as quarantines and shutdowns. This background shows that the responses to the coronavirus crisis in Brazil have been fragmented and institutionally disperse. One cannot point out a single, exclusive institution responsible for the public health responses to the current crisis in Brazil.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1790104","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41259445","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Can legislative standards be subject to ‘quarantine’? The functioning of the Tablet Sejm in Poland in the COVID-19 era","authors":"Maciej Serowaniec, Z. Witkowski","doi":"10.1080/20508840.2020.1805851","DOIUrl":"https://doi.org/10.1080/20508840.2020.1805851","url":null,"abstract":"ABSTRACT Extraordinary circumstances, and the COVID-19 pandemic undoubtedly meets this criterion, require extraordinary solutions to be adopted, extending to the state decision-making process to prevent such crises from escalating. For this reason, the introduction of the possibility of holding a remote session of the Sejm seemed a reasonable move from an epidemiological point of view, but in practice, it proved to be a great challenge, not only from an organisational and technological point of view, but also in terms of ensuring respect for fundamental legislative principles. The aim of this article is to show how the current parliamentary majority has instrumentally played on the Parliament and the legislative process under the guise of fighting against the effects of the COVID-19 pandemic to gain makeshift political benefits, without any regard for the standards of law-making in a democratic rule of law state.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1805851","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45570440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"COVID-19 legislation in Belgium at the crossroads of a political and a health crisis","authors":"P. Popelier","doi":"10.1080/20508840.2020.1771884","DOIUrl":"https://doi.org/10.1080/20508840.2020.1771884","url":null,"abstract":"ABSTRACT This paper discusses the corona virus crisis legislation in Belgium, against the background of a political crisis. It raises the questions how a minority government could find legitimacy to take drastic measures that impact upon fundamental rights and how the political crisis impacted the position of Parliament. This is examined from the viewpoint of input, throughput and output legitimacy, and with a comparison to the position of Parliament in Belgium during earlier crises and in the federated entities. The conclusions point to the increased importance of expert advice, an over-use of ministerial police powers, but also to a more important role for Parliament than what we could have expected under the reign of a majority government. While the political crisis did not hinder firm intervention in an initial phase, it is, however, problematic to deal with the effects of the crisis over the longer term.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1771884","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48669178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"America’s covid-19 preexisting vulnerability: a government of men, not laws","authors":"James R. Maxeiner","doi":"10.1080/20508840.2020.1809173","DOIUrl":"https://doi.org/10.1080/20508840.2020.1809173","url":null,"abstract":"ABSTRACT The legislative response of the United States of America to the covid-19 pandemic is a calamity. Incompetent leaders have turned a natural disaster into a national catastrophe. The catastrophe unmasks a weak rule of law that is closer to a reign of men than it is to a government of laws. Lousy legal methods predating covid-19 allowed tragedy to happen. This article summarises the legislative-like responses to covid-19 and identifies systemic failures, i.e. covid-19 preexisting vulnerabilities.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1809173","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43343452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislatures in the Time of Covid-19","authors":"Ronan Cormacain, I. Bar-Siman-Tov","doi":"10.1080/20508840.2020.1816017","DOIUrl":"https://doi.org/10.1080/20508840.2020.1816017","url":null,"abstract":"ABSTRACT Legislatures around the world have been challenged by the 2019 novel coronavirus pandemic. Questions have arisen about parliaments’ operation during the pandemic, their role in combating covid-19, and their relationship with the executive and other state actors. This editorial introduces the special issue on ‘Legislatures in the Time of Covid-19’ and offers an overview of its rich array of articles.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2020.1816017","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43359565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}