Legislature

A legislature is a political and governmental body whose primary function is to enact, revise, and repeal laws. However, legislatures do many other things. They approve or reject nominations for senior nonlegislative government posts. They approve, amend, or reject foreign treaties and other agreements. They conduct investigations and issue nonbinding resolutions and proclamations. In some systems, the legislature may select the prime minister, determine their governing coalition, or bring down the government by a vote of no confidence.

Legislatures take many names. The most common, generically, are parliament, congress, assembly, and house. They exist at the national level and at lower levels, such as states, provinces, and cantons. In democracies, legislators (members of the legislature) are usually elected directly by the people, although there are exceptions, such as the British House of Lords.

In theory, the legislature is the governmental body most expressive of and responsive to public opinion. It is, therefore, considered an essential aspect of democracy.

Background

It is impossible to know when the idea of a representative legislature, as opposed to a general assembly of the people, a direct democracy, arose. An ancient Scandinavian proverb explains, "Because the room cannot hold all." The world’s oldest legislative body may be the Althing of Iceland, founded in 930 CE. But the modern representative legislature is, in the West, the product of millennia of theorizing, experimentation, and occasional radical departures in political tradition and practice.

The legislative idea began as part of a larger concept: the separation of powers according to function, which evolved into the current division of legislative, executive, and judicial branches. Early empires knew only absolute monarchies, royal councils, and royal and priestly courts. Greek city-states inched toward giving their citizens (a small minority of the population) a direct voice that would balance, and sometimes oppose, the rulers and the judges. Aristotle considered this in his Politics. The Roman Senate and popular assemblies also moved in this direction, as did some European communes of the later Middle Ages.

The Enlightenment of the seventeenth and eighteenth centuries gloried in political optimism. Humanity was capable of self-government with the right mechanism. French philosopher Charles de Secondat, Baron de Montesquieu, is generally credited with the first clear enunciation of the role of the legislature. There is debate over the degree of influence of his 1763 book, The Spirit of the Laws, on America’s founders. What is certain is that, at the American 1787 Constitutional Convention, the founders were the first to try it on the national level.

The founders were not radical democrats. The Congress would consist of two chambers: a House of Representatives elected by a restricted (White male, sometimes with property qualifications) minority, and a Senate elected by state legislatures until 1913. Their accomplishment was to create a system in which the inevitable errors, excesses, and crimes of government would be mitigated by the machinery of government; each branch would do its job in cooperation and/or conflict with the other two, not by human virtue or divine guidance.

Legislature Today

If modern democracy without a representative legislature is unthinkable, this hardly means that the legislative system is perfect or even thriving. Some problems come and go; others are intrinsic. Some question whether legislative systems designed by the ideals and expedients of the last millennium are adequate to address the problems currently facing the nations and the planet.

The most obvious problem is that not everyone who is elected is good or honest. Some end up in disgrace or in prison. A greater problem may lie in the fact that nondemocratic persons are sometimes elected to sit in legislatures they despise and intend to destroy. Such was certainly the case with the Nazis in the German Reichstag of the early 1930s. This problem may be returning in many countries, especially within the European Union; as economic malaise and the refugee crisis continue, the centrist parties lose respect, and the extremes begin to flourish.

Parties themselves constitute a major problem. America’s founders despised political parties, dismissing them as mere self-seeking factions. But political parties and the money they attract remain.

This creates three dilemmas. The most obvious: votes for sale. The other two are structural. In a two-party, winner-take-all system, such as the United States, large numbers of voters may be effectively disenfranchised. This includes the sitting minority when the majority party becomes too dominant.

Conversely, countries that maintain proportional representation systems often suffer from instability. A proportional representation system allots seats in the legislature according to the percentage of votes a party receives. Voters may not even vote for individuals but for a party list. The party wins, for example, ten seats; the first ten names enter the legislature. Obviously, this gives small parties disproportionate influence when coalition building becomes necessary. Attempts to limit this situation by establishing a threshold percentage of the vote do little to help. This has long been the case in countries such as Italy and Israel.

Other problems reside in the habits of the legislatures themselves. As a rule, legislatures are fiercely protective of their right to establish their own procedures. An example is the seniority system, by which powerful positions, such as committee chairs, are allotted on the basis of longevity. Another example, made famous in the United States during the McCarthy era, is Congress’ virtually unlimited power to investigate anything and everything, with no legal and few other restraints upon the ability of unscrupulous or undemocratic legislators to damage lives and institutions.

A final problem lies in the very cumbrousness of the legislative process. In a unicameral (one chamber) legislature, bills may require multiple readings to be passed or rejected. A bicameral (two chamber) legislature requires that both houses pass identical bills. And that old American senatorial perquisite, the filibuster, wherein legislation can be blocked by the right of each senator to talk without limit, has revived.

Bibliography

Aristotle. Politics. Translated by Carnes Lord, University of Chicago Press, 2013.

"America's Founding Documents." National Archives, 5 June 2023, www.archives.gov/exhibits/charters/constitution‗transcript.html. Accessed 25 Jan. 2025.

Bok, Hilary. "Baron de Montesquieu, Charles-Louis de Secondat." Stanford Encyclopedia of Philosophy, 2 Apr. 2014, plato.stanford.edu/entries/montesquieu. Accessed 25 Jan. 2025.

Donovan, Sandy. Making Laws. Lerner Publishing Group, 2004.

Hamilton, Alexander, et al. The Federalist Papers. Signet, 2003.

“The Legislative Branch.” Obama White House, obamawhitehouse.archives.gov/1600/legislative-branch. Accessed 25 Jan. 2025.

Montesquieu, Charles de Secondat, Baron de. The Spirit of the Laws. Translated and edited by Anne Cohler, et al., Cambridge University Press, 1989.

Pukelsheim, Friedrich. Proportional Representation. Springer, 2014.

Steinkraus, Kyla. How a Bill Becomes a Law. Rourke Educational Media, 2015.

Zander, Michael. The Law-Making Process. Cambridge University Press, 2012.