Legislatures in both parliamentary and presidential systems are capable of reasoned action. However, parliamentary legislatures are better structured to this end; the reasonable person has good reason to choose to introduce and maintain a parliamentary legislature.136 (For simplicity, I ignore hybrid forms of regime and the important but very complex question of how different electoral systems bear on legislative behaviour.) Carey notes that there is a consensus amongst political scientists against presidentialism.137 The leading work on point is by Linz, who argues that presidential regimes,
especially in new democracies, are prone to collapse into authoritarianism.138 The problem, as Carey puts it, is that ‘presidentialism inflames antagonism between the popular branches while proscribing any constitutional mechanism for resolving the most serious conflicts’.139 The president’s direct election tempts him to claim a popular mandate even when he may have only modest popular support, perhaps less than the separately elected assembly. He need not build a coalition of support to enjoy executive authority, as must a cabinet in parliament, and he may respond to deadlock with the
assembly by resorting to unconstitutional action.
The parliamentary alternative is to authorize the subset of leading legislators to be the government and to subject them to an ongoing requirement to maintain the confidence of a majority of legislators. The advantage of this alternative is that it does not set up institutions against one another that both have authority to rule. It integrates the two different dimensions of government—legislation and control of administration—in the assembly. The parliamentary legislature authorizes a salient subset of legislators to set the agenda: those who also direct the government. Those legislators act with the support of a majority and may develop and advance reasoned, coherent proposals. The ministers have the capacity to direct the shape of proposals, although they must move the proposal through the
legislative process, at which time they must defend its content in public. Proposals may change quite radically in this process. The minister is the leading agenda-setter with respect to the particular proposal, although cabinet as a group controls the wider legislative agenda.
however, defend the bill in committee, in the house, and, perhaps in the second house. Anticipated opposition may be very significant in shaping initial proposals.140 And bills are often amended significantly across the course of the legislative process. Most amendments are moved by the government and passed by the majority party but it does not follow that the minister acts entirely freely in doing so. He may move an amendment to address an argument raised by his backbenchers, the opposition, or interested third parties. He may also adopt intelligent comments that improve or correct proposals. The minister may not wish to acknowledge the source of the modification to the proposal, but he has good reason to incorporate it in a government amendment.141 Many legislators work on proposals as they make their way through the legislative process, especially but not
exclusively in committee. Input from backbenchers from both parties often has a significant impact on the content of the final proposal.142 The minister then is critical to shaping the ongoing proposal, but he does not work alone, and he does not present a fait accompli to the legislature.
The legislature is, I maintain, a deliberative body, even in a parliamentary system where legislators have good reason to form somewhat unified voting blocs. Ministers and others form legislative proposals, often in response to detailed policy work by officials and widespread
consultation, inside parliament and amongst the public at large. The content of the bill, especially its broad principle and purpose, is debated in the house. The bill is considered at committee, often in extensive detail, before being returned to the house for further debate in light of the changes the committee has made, or proposed, to it. The minister and other key legislators—usually but not
exclusively from the majority party—work on the bill between stages, discussing its detailed content and its reasoned scheme with backbenchers, opposition leaders, interested third parties, and
executive officials. The final debate in the house concerns a bill that has been closely worked over and is in a form that the minister is prepared to move and which he expects will attract majority support. Legislators debate the bill in this its final form, in direct comparison to the status quo. In a bicameral assembly, the second house then considers the proposal. The point of this extended
lawmaking process, which may be expedited on occasion, is to open up the proposal to the assembly, improving and testing it until the moment when, in its final form, the legislators must choose whether the legislature should enact it. That is, the legislature deliberates because the laws that it enacts should be a response to reason.
Legislative deliberation also helps the legislature avoid cycles and make stable decisions.
Legislators deliberate in public and so are more likely to make sincere judgments, acting strategically less often than would otherwise be the case.143 The reason for this is that there are penalties, in terms of reputation and capacity to form stable arrangements in the future, for deception. Further, there is some evidence that deliberation about common problems induces a greater cooperative
disposition.144 As I argued in section III of this chapter, deliberation in public narrows the range of possible argument, screening out arguments that plainly cannot withstand scrutiny, and forcing deliberators to appeal to the general rather than private interest.145 Deliberation may uncover empirical errors that explain disagreement and prompt cycles. Alternatively, deliberation may disaggregate complex issues, identifying the multiple sub-issues in need of resolution.146 It may be possible to decide these sub-issues without cycling; that is, once disagreement is sharpened, a stable majority may be found.147 Finally, legislators who deliberate together may identify a cycle and act to avoid it, crafting a new proposal for action that differs from the initial, cycling alternatives and is thus stable.148
The Westminster and Washington legislatures are vulnerable to different pathologies. The
Washington legislature has many veto-players, and has difficulty exercising its capacity to legislate in response to reasons. It may enact legislation that is not fit to be chosen by a reasoning person, because it is rendered incoherent by the various riders insisted on by veto-players. The Westminster
legislature has a dominant party leadership, which may abuse its majority, forcing through measures without adequate deliberation or scrutiny. In this case, the leading legislators act like a cartel, failing to submit proposals to the assembly but instead forcing the assembly to rubber-stamp their decisions. It might seem then that in either case, but perhaps especially in parliamentary systems, legislative deliberation will not in truth be a serious reflection on the reasons for changing the law.
Hardin argues that an inevitable consequence of popular democracy is that legislative deliberation largely collapses to mere posturing, because Congress is forced to wage a permanent electoral
campaign.149 He says that:
Deliberation often takes place to the side of the congressional main stage, in staff meetings and in expert panels convened to discover various things and to invent policy options. It is a subordinate activity and an activity that might take place as much in a nondemocratic polity in which the search for good policy is taken seriously.150
This conclusion may confound deliberative democrats, as Hardin intends,151 but I take it to be
consistent with the legislative assembly being structured to reason and act well. Not all deliberation has to be democratic to be justified: the detailed work of legislative committees and government departments, in close consultation with experts and interested parties, may not take place in the full glare of public scrutiny, but it remains valuable. It is true that the debates in plenary session,
especially on questions of general interest rather than the detail of legislative proposals, may at times amount to straightforward campaigning, rather than active engagement in lawmaking. But there is no reason to think, from Hardin’s argument, that this is inescapable, especially when, in parliamentary systems at least, the electoral fortunes of each legislator turn in large part on the coherence and competence of the government’s policy programme rather than on his particular debating record.
Two spectacles mark parliamentary debate, argue Brennan and Hamlin: a legislator reading a speech to a deserted chamber or everyone shouting at someone who reads a speech.152 This is unsurprising, they say, for ‘in strong party systems: parliamentary debate is either a ritual or a continuation of campaigning by other means’.153 The legislators do not listen to one another and no one changes their mind because the votes are already settled.154 Debate cannot plausibly be thought as an attempt to change minds or votes, they say, because the latter are committed.155 This analysis is, I suggest, mistaken. Deliberation is not confined to plenary session and it need not be relentlessly partisan. Opposition legislators have good reason to aim to improve legislative proposals that are likely to pass in some form. Also, not all debates in plenary session focus on highly contentious partisan issues. The government often has no position on certain issues and is prepared to develop proposals in response to debate. Or, debate may concern change that most agree is needed in some form, with intelligent, constructive debate concerning precisely what form.
Further, Brennan and Hamlin effectively assume that every vote is a confidence vote. This is not so and the voting unity of the majority is accordingly not guaranteed. Majorities fracture and they
fracture, sometimes at least, in response to reasons and arguments. Legislators may view debate in the chamber just as a continuation of the electoral campaign, but they may, and should I argue, often
participate in serious argument, attacking or defending the merits of some proposed solution.156
argument in the assembly towards the voting public, but it would be unwise to assume this did not have a direct feedback to the actions of legislators. If legislators win the argument outside the assembly, this may, and sometimes should, prompt the unified voting majority to reconsider its
position, modifying or changing its proposals. Again, it is overly hasty to take party alignment or unity to entail that legislators do not respond to reasons and that deliberation is necessarily an empty dance. There are very good reasons to authorize an assembly to legislate, for an assembly is less likely than a sole legislator to misuse its authority, makes it possible for citizens to share in government, and is better placed than the sole legislator to legislate well. These reasons bear on who it is that should legislate, not what it is to legislate. The assembly should, like the prince, choose to change the law for good reasons. It is rightly a representative and deliberative body, in which the assembly’s standing in relation to the community supports rather than frustrates its capacity to make reasoned choices. The assembly’s size and diversity is a prima facie obstacle to its exercise of this capacity and the
members of the assembly for this reason institute an internal hierarchy which supports coherent, reasoned joint action. There are real differences between the structure of Washington and
Westminster legislatures, but both are capable of reasoned choice and the structure of the latter is especially suited to this end. The well-formed legislative assembly is thus an institution structured to choose for reasons.