Bernatchez, Stéphane;

2007

De la représentativité du pouvoir législatif à la recherche de l´intention du législateur: les fondements et les limites de la démocratie représentative

Les Cahiers de Droit, Quebec, v. 48, n. 3, p. 449-476, 2007

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Democracia | Poder legislativo | Representação política

The foundations of the legitimacy of legislative power arose from the concept of representation, while representative democracy came into being as a modern-day politico-legal model. Be that as it may, contemporary thinking holds that representative government is not synonymous with democracy. It has only been in the aftermath of this evolution that both models have become confounded. Indeed, from the Age of Enlightenment onward, legitimacy has been the offspring of consent, whereby the sovereign thereafter must be represented. Now, this conceptualization of legislative power has been questioned owing to various contemporary changes that weaken the legitimacy of a representative democracy. On the one hand, evolving political and electoral systems illustrate the limits of possible representation. Yet on the other, legal positivism derived from representative democracy has oriented legislative exegesis towards the search for the legislator's intent. Such an exegetic quest has, however, proven to be somewhat problematical when viewed in the light of contemporary theories of language.

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