This project examines how judicial and constitutional review can address abusive lawmaking processes and practices in Europe and Latin America, thereby strengthening democracy and its resilience. Abusive law-making process is a practice that is contrary to the constitutional purpose of the procedural rules and/or aims at or results in undermining constitutional democracy. The project identifies two types of abuse. Firstly, the misuse of the law-making process indicates a formally lawful process that is contrary to the principles of constitutionalism. Secondly, an outright violation of the lawmaking process occurs when laws are adopted through a process that infringes on the black-letter law of how laws should be made. Using a functional comparative approach with case studies in Colombia, Chile, Brazil, Mexico, Spain, France, Germany, Hungary, and Estonia, the research analyzes jurisprudence, legal texts, parliamentary practices, and international guidelines. The aim is to identify how courts can act as effective oversight mechanisms against abusive lawmaking processes and practices.
Project members
Region / Focus
Europe + Latin America, constitutional review, democratic resilience
Bibliography
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Kazai, V. Z. (2025). The Equilibrium of Parliamentary Lawmaking: Comparative Perspectives on the Role of Courts in a Democracy. London: Routledge.
Bar-Siman-Tov, I. (2011). The Puzzling Resistance to Judicial Review of the Legislative Process. Boston University Law Review, 91, 1916–1974.
Drinóczi, T. & Cormacain, R. (2021). Illiberal Tendencies in Lawmaking. The Theory and Practice of Legislation, 9(3).
Pinheiro, V. M. (2024). Devido Processo Legislativo: Elaboração das leis e seu controle judicial na democracia brasileira. Rio de Janeiro: GZ Publisher.
Soto, S. (2015). Congreso Nacional y Proceso Legislativo. Santiago: Thomson Reuters.
Ely, J. H. (1980). Democracy and Distrust: A Theory of Judicial Review. Harvard University Press.
Kelsen, H. (1967). Pure Theory of Law. Trans. Max Knight. University of California Press.
Gardbaum, S. (2020). “Comparative Political Process Theory.” International Journal of Constitutional Law, 18(4), 1429–1457.
Rose-Ackerman, S., Egidy, S., & Fowkes, J. (2015). Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union. Cambridge University Press.
Tímea Drinóczi
Chief Researcher at Mykolas Romeris University (Lithuania), Research Affiliate at the CEU Democracy Institute and the Federal University of Minas Gerais, and Doctor of the Hungarian Academy of Sciences.
Viktor Kazai
Legal scholar specializing in comparative public law and European law, with a doctoral degree (S.J.D.) from Central European University.
Victor Marcel Pinheiro
Master and PhD in Constitutional Law (University of São Paulo). Professor at the Brazilian Institute of Education, Development and Research (IDP, Brasília).
Sebastián Soto
LL.M. (Columbia University) and Ph.D. in Law (Universidad de Chile). Associate Professor at the Law School of Pontificia Universidad Católica de Chile and Researcher at the Centro de Estudios Públicos (CEP).
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