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Description
Modern democracies view Constitutions as means to control power. Constitutions guarantee a set of fundamental rights, establish the democratic rules for electoral procedures, and offer minorities protection from the “tyranny of majorities.”Constitutionalism has concluded that judges offer an impartial scenario to guarantee the supremacy of the Constitution in what is called “judicial review.” Judicial review may be performed by every judge of a country or by a single Constitutional Court or other courts performing such duty. Judicial review is conceived as a remedy to prevent the problems of “majoritarianism.” However, quite paradoxical, at the end of the deliberation, Courts performing judicial review vote to make a decision. The same mechanism is employed by judicial review. The legal doctrine has created categories to explain every aspect of judicial review but has ignored the existence of qualified majorities. The absence of any theory to explain this phenomenon is the main reason to conduct the proposed research project. This research project intends to develop a new theory of constitutional control that explains this problem as a substantial result of the project. The research will be developed in three phases. In the first phase, the project will create a theoretical framework for the phenomena, including categories, scientific terminology, and underlying reasons for employing qualified majorities. The project will try to prove that qualified majorities work as deferential mechanisms. The project will show that these mechanisms not only diminish the democratic tensions of judicial review but also obliges consensus building in constitutional adjudication. The second phase will be to apply all the categories created to the existent models of qualified majorities and to understand through analyzing their functioning whether or not they hinder judicial review and to what degree they force parliamentary deference.
Summary of project results
Courts often employ a majority vote as a decisional threshold (50 percent plus one of the judges). In several jurisdictions, a higher majority is required either for the court to pronounce a decision or only to strike down a law. Scholarship had previously debated certain aspects of supermajority rules, particularly in the United States, and some minor analysis had been done pertaining to the philosophical justification of supermajority rules. Nonetheless, scholarship had traditionally neglected how jurisdictions employing supermajority rules functioned in practice and had yet to analyze such rules comparatively. The project attempted to tackle the lack of a theoretical framework to understand the imposition of supermajority voting constraints on courts and simultaneously the absence of empirical research on how courts that function under supermajority requirements are affected by those rules.
The project performed a literature review of supermajority rules in constitutional adjudication and provided a theoretical framework to understand their impact. Furthermore, it selected a sample of 12 jurisdictions and analyzed the impact of said rules on different constitutional and apex courts through qualitative analysis and quantitative indicators on the recurrence in which said rules prevent courts from striking down legislation. On the basis of the empirical evidence obtained, the book proposed a typology of supermajority rules and a new conceptual framework to understand how their design and the informal rules that often surround them affect the
functioning of constitutional courts. In brief, the project:
• Performed a theoretical analysis of the theory justifying the usage of supermajority rules in constitutional courts
• Analyzed qualitatively and quantitatively the functioning of supermajority rules in a sub-sample of jurisdictions employing such rules
• Proposed a new innovative typology of institutional design of supermajority rules with an interplay to their theoretical aims and characteristics. As part of the project, qualitative and quantitative analysis was performed, participation in research workshops, presentations at academic conferences, and multiple publications.
The project uncovered that contrary to common thought, supermajorities, in many cases, barely affect courts and that there is mostly no correlation between the required degree of consensus and the ability of supermajority rules to invalidate legislation. It also proposed a theoretical classification of supermajority rules and revealed the reasons policymakers introduced them to a given legal
system. Thus, the project has significantly advanced our knowledge of how such rules function and what real impacts are expected. Understanding supermajority rules in constitutional adjudication has a strong societal impact. Not only can they be an alternative to avoid arguments about the lack of democratic legitimacy of judges, but they also will allow us to understand contemporary pressing political issues better.
Recently, different governments introduced supermajority rules transitorily (Poland in 2015 and Georgia in 2016) or attempted to do so (Israel 2023). The project helps us better understand the consequences, reasons, and impact such rules are expected to have in constitutional courts and their functioning in democratic societies. The project produced several research papers, both theoretically and empirically analyzing supermajority rules, as well as a research monograph that comprehensively studies the impact of supermajorities in courts and categorizes them. It broadens the understanding of the research community, benefiting scholars and students. Furthermore, as part of the research grant, further funding was obtained for the PI to remain at the hosting institution, strengthening the international nature of the University of Silesia and aiding the academic development of the PI.