Influence of Direct Democracy on Legitimacy of Legislative Drafting
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ICON-S CEE, Member of the Council
The article discusses the question of whether direct democracy (for example, a referendum) is a better resolution to certain legislative drafting issues than representative democracy, and that first of all from the aspect of the legitimacy of legislative drafting.
The legitimacy of laws is one of the central problems of legislative drafting. Only correctly legitimised laws and norms can have a regulative role. The legitimacy of laws is the main prerequisite of their efficiency. Legitimisation in wider terms is a process of explication and justification of an institutional order or organisation and the output is the legitimacy of that order. Legitimacy means recognition of political or wider social systems (orders, organisations). Two closely connected legitimacies have to be distinguished: legitimacy of political institutions and that of legislative drafting. The legitimacy of an institution may, on the one hand, be conditioned by its legitimacy, that is, legality, and, on the other hand, influenced by the legitimacy of the legislative drafting it is performing. The legitimacy of legislative drafting is, in its turn, influenced by the legitimacy of the political institution.
The author quotes the concept of legitimacy created by Henn Käärik (based on the theory created by Max Weber and Jürgen Habermas), according to which legitimacy can be classified as A-legitimacy and B-legitimacy. The A-legitimacy is obligatory and normative; the B-legitimacy stands on the actual recognition of people (“values”). The article discusses whether direct democracy can ensure, with the help of the pattern of participatory democracy and deliberative democracy, legislative drafting with a greater legitimacy than representative democracy. Arend Lijphart’s study on the implementation of the forms of direct democracy by political power is used. In Lijphart’s opinion, the majority of referendums are both controlled and pro-hegemonic and the authority (government) applies them only when it is profitable for it. In a later study, Lijphart claims that public initiative gives a strong impetus to the majority to take account of the interests of the minority and therefore it is a more favourable instrument than referendum. In spite of that, public initiative is used in a very limited extent in only a few countries.