Document Type

Article

Publication Title

Loyola Law Review

Abstract

Political scientists often remind us that real legislative power is vested in a much smaller number of people than the full membership of Parliament or the full membership of Congress. They emphasize the power of the executive in Westminster-style systems, under which the parliament very seldom fails to enact any bill proposed by the executive and very seldom enacts any bill not proposed by the executive. Or, in American legislatures, political scientists point to the power of committees as the effective legislative power. This might suggest' that the disparity of numbers to which I have called your attention is more a matter of what Walter Bagehot called a "dignified" characteristic of constitutional custom rather than an "effective" aspect of constitutional reality. In some countries no doubt that is true. The Chinese legislature has 2,979 members, but I doubt that real legislative power is distributed equally in that assembly. Still, in the end, this debunking gambit will not do. For I have no doubt that if the very same political scientists were called upon to advise an East European country on the reconstruction of its constitution, they would say, among other things, that the country should have a structure of courts with a high court sitting in panels of five or so; that it should have a small and decisive executive body of about twenty ministers or secretaries of state; and that it should have a legislative chamber of some hundreds of members to enact and amend its laws. This insistence on a parliament of some hundreds of members would be seen not just as a quaint concession to antiquarianism, like the restoration of a Hohenzollern to the throne of Romania. It would seem more or less obvious as a feature of working constitutional structure. We have a sort of constitutional instinct that the law-making branch, above all the other branches of government, should consist of large numbers of people. We take it for granted that if there is explicit lawmaking or law reform to be done in society, it should be done in or under the authority of a large representative assembly. The challenge, then, is to explain this constitutional instinct, to run it to earth, so to speak, and then to see whether it tells us anything interesting about law.

First Page

507

Volume

46

Publication Date

2000

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