Proceedings of the 22nd International Academic Conference, Lisbon

THE SCOPE OF QUALIFIED LAW: COMPARATIVE ANALYSIS

BOLDIZSÁR SZENTGÁLI-TÓTH

Abstract:

During the last decades, several countries have entrenched a special subcategory of law, which is adopted by stricter procedural rules, than the requirements of the ordinary legislative process. These laws are enacted by qualified majority, by the consent of the two chambers of the legislation, they are subject to mandatory constitutional review before their promulgation, or additional safeguards are implemented in the ordinary legislative process. In my article, I would compare the experiences of three legal systems, France, Spain, and Hungary, which provide three different frameworks of qualified law. Nevertheless, I would provide further examples from Europe , Africa and Latin America to demonstrate better the diversity of legal concepts. My aim is to identify the most contested issues from the legal nature of qualified laws, and to seek the proper solutions of these issues, as well as an ideal model of qualified law. - Firstly, on the ground of different national experiences, I would seek for a broadly acceptable definition of qualified law. - Secondly, I would briefly compare the historical background of the three emerges. An important common point would be the role of qualified laws during any process of democratic transition. - Thirdly, the scope of qualified law differs significantly from country to country, consequently, I would continue with this issue by arguing for a narrower scope of qualified law. - Fourthly, qualified law may have a special position in the hierarchy of norms, somewhere between statutory and the constitutional level, so I would cover this aspect. I would focus on the level of precision of constitutional articles in this regard. - Furthermore, the separation of powers perspective of qualified laws would be taken into consideration: the neglect of two-third majority, and the mandatory a priory review. - As the main outcome, certain points would be highlighted for a potential constitution-drafting process.

Keywords: Qualified majority, separation of powers, fundamental rights, scope of qualified law, democratic transition, rule of law, hierarchy of norms

DOI: 10.20472/IAC.2016.022.056

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