What Constitutes a Legislature?
WHAT REQUIREMENTS MUST BE MET before we can rightfully speak of a legislature?1 This is a topical question when considering the various international and supranational organizations who are endowed with powers to enact rules and regulations. In other words, they possess the power to legislate. Contrary to what one might expect, constitutional literature contains elaborate definitions of state, sovereignty, parliament, judiciary, and even legislative procedure and instruments, but it only rarely deals with the question of whether a legislative body should be considered as a real legislature.2
A real legislature is usually associated with the parliamentary body, or at least a committee that adopts rules that are generally binding on citizens with the cooperation or approval of an assembly of elected representatives. This democratically legitimized legislature must also be superior to other governing entities to prevent the rules that have been created with the cooperation of the population's representatives from being immediately cancelled by later or lower law-making bodies or simply set aside by a court or administrative body.
"A Legislature is a type of representative deliberative assembly with the power to create, amend and ratify laws. The law created by a legislature is called legislation or statutory law."3 It is this very aspect of people's representation that distinguishes a real legislature from other rule-makers that have either dependent or independent regulatory powers.
Patricia Popelier, an influential Belgian scholar, has also tried to come to terms with the exact meaning of the term "legislature." In her search for the meaning of the concept, she depends on the First Protocol to the European Convention on Human Rights. In this document, a "legislature" is defined as the body that has its own primary regulatory power and must therefore be constituted on the basis of elections.4 For this reason, the principal distinction between "primary legislation" (i.e., legislative acts voted upon by parliamentarians) and "secondary" or "subordinate legislation" (i.e., generally binding laws of inferior rank) lies in the democratic legitimacy of primary legislation. "Primary legislation restricts, underlies and justifies other government actions, which must always be based on legislation (or the Constitution) [...] In other words, the primary legislature requires no authorization other than the constitutional provisions that confer general legislative power on it, whereas other law-making bodies have only a conferred power in principle."5
This latter quote also hints at another hallmark of a real legislature: the representation of sovereignty. Real legislatures around the world represent sovereign power in the sense that the laws they enact are binding upon the represented population by force of the supreme sovereign power within a state, or, for that matter, a state-like entity or organization.
Knowing the difference between primary legislation and secondary legislation, and, accordingly, between primary legislatures and secondary legislatures can tell us about the characteristic features of a real legislator. The following are a few characteristics of real legislatures that we can derive:
* Competence: power conferred by a constitution or another constitutional document to allow the body to adopt generally binding rules.
* Parliamentary involvement in adopting generally binding rules in the form of "co-determination" (such as the right of legislative initiative, the right of amendment, etc.).
* Binding power: the power to bind citizens and bodies to general legal rules.
* Power to confer: the ability to create law and delegate this power to other bodies.
* Power of ratification: the power to ratify or reject treaties and the like.
* Primacy: the power to exercise the highest law-making authority …