The Equilibrium of Parliamentary Law-making: Comparative Perspectives on the Role of Courts in a Democracy

Viktor Zoltán Kazai

Université libre de Bruxelles

Tell us a little bit about the book.

My book addresses the threats to constitutional democracy caused by the increasing power of the executive branch and the diminishing role of parliaments in shaping policies. This trend often results in the manipulation or violation of parliamentary law-making rules, called irregularities. If these irregularities go unchecked, they can erode the constraints on the ruling political forces, leading to the arbitrary exercise of power. The book examines the constitutional implications of these irregularities and explores the role of courts in addressing these issues.

The analysis is based on the concept of equilibrium, which represents the ideal state where parliamentary law-making aligns with constitutional requirements, and judicial review serves as a means to achieve this goal.

The book focuses on the judicial review of the regulation and practice of parliamentary law-making, discussing relevant legal concepts, institutions, and doctrines. It combines theoretical analysis with case law-centered comparative research, drawing from decisions made by top courts in various jurisdictions, including the usual suspects (such as Germany, Israel, South Africa, and the U.S.) and those legal systems that are either under-represented or completely ignored in the relevant literature despite the availability of pertinent case law (such as Brazil, Colombia, Italy, Spain, France, Czechia, Poland, and Hungary). Through this approach, the book aims to contribute to scholarly discussions and provide practical information for lawyers and policymakers in the fields of constitutional law, politics, and comparative law.

What inspired you to take up this project?

The inspiration for my project stemmed from the dramatic illiberal turn in the Hungarian legal system and the swift decline in the quality of legislative processes after the Orbán government came into power in 2010. As a law student in Hungary at the time, I noticed that the government aimed to push through its illiberal political agenda very quickly and without compromise. Their manipulation of parliamentary procedures and lack of meaningful cooperation with opposition MPs and civil society organizations raised serious concerns about the constitutional requirements of democratic law-making. Furthermore, the Constitutional Court's failure to robustly exercise its authority in scrutinizing legislative practices underscored the seriousness of the issue.

These observations prompted me to dig deeper into the topic, ultimately leading me to pursue doctoral studies in comparative constitutional law at Central European University in Budapest. As I delved into the subject and started collecting information about foreign jurisdictions, I realized that both the systemic deficiencies of the legislative process and the lack of sufficiently strong judicial review of parliamentary law-making are much more prevalent problems than I initially thought.

Whose work was influential on you throughout the project?

Throughout my project, the works of Jeremy Waldron, Hans Kelsen, and Alexander Calder had the most profound influence on shaping my ideas and guiding me through some of the most crucial challenges.

Jeremy Waldron's exploration of the underlying principles and the integrity of the legislative process provided me with valuable perspectives on the constitutional significance of procedural considerations. His work helped me substantiate that adherence to the legal requirements of parliamentary law-making is more than just simple technicality having little constitutional significance, if any.

Hans Kelsen's focus on the procedural aspect of the constitution and procedural judicial review was particularly helpful in justifying the legitimacy of judicial intervention in parliamentary law-making. It follows from his notion of procedural validity and his theory of judicial review that courts have the competence to scrutinize the constitutionality of both the regulation and practice of law-making. I believe that Kelsen’s work offers the most solid foundation for understanding and justifying procedural judicial review.

Alexander Calder's pioneering work in kinetic art and his concept of equilibrium inspired my unique representation of parliamentary law-making. I used the concept of equilibrium to explain and visualize the ideal state in which parliamentary law-making complies with constitutionalism. I interpreted procedural irregularities as disturbances in the equilibrium and depicted constitutional courts as remedies to restore it. Calder's mobiles helped me understand and explain the constitutionality of such a complex exercise of state authority as parliamentary law-making.

The equilibrium of parliamentary law-making, illustration by the author. Source: page 11 of the book.

The actors of parliamentary law-making, illustration by the author. Source: page 12 of the book.

What challenges did you face in writing the book?

In carrying out my research, the biggest challenge I encountered was the scarcity of comparative scholarly literature on the topic of judicial review of parliamentary law-making. This made it difficult to find comprehensive resources to support my research. I knew that procedural judicial review is exercised in a large number of jurisdictions, but the language barrier posed a significant challenge, as accessing information on relevant foreign case law required a considerable amount of time and effort. Navigating through databases, constitutional court websites, and news sources to collect pertinent judicial decisions and reconstruct legal reasoning one by one was extremely time-consuming. Nevertheless, I enjoyed the research because I viewed this problem as a puzzle. With each new case collected from a jurisdiction, I felt like I was uncovering an increasingly large part of the whole picture. Eventually, I included more than 150 court decisions from 26 jurisdictions in the book, providing readers with a comprehensive overview of this topic.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

I believe that my book presents two main contributions to the scholarly debate and to constitutional law in general.

Firstly, the book draws attention to the critical importance of the constitutionality of parliamentary law-making in a contemporary democracy and the potential dangers associated with its deficiencies. By highlighting the risks of non-compliance with the constitutional principles of the legislative process, the book serves as a timely warning to scholars, policymakers, and the public about the erosion of procedural constraints that are supposed to prevent the arbitrary exercise of power by the ruling political forces.

Additionally, the book shows that courts have the potential to become key actors in guaranteeing the compliance of parliamentary law-making with the requirements of constitutionalism. Courts have all the necessary tools to shape the regulation of the legislative process and to influence the behavior of the actors participating therein. Therefore, if a specific court in a given jurisdiction does not enforce the requirements of constitutionalism due its lack of competence, absence of judicial standards, doubts about its role in the protection of the separation of powers, democracy and the rule of law, or reluctance to intervene in the sphere of politics, this comparative study can help remedy this deficiency by providing ample information about how to turn judicial review into an effective enforcement mechanism.

What’s next?

I plan to develop my book into further projects by leveraging the research and analysis it contains to actively promote positive changes in legal practice. Specifically, I am working on a project aimed at facilitating strategic litigation in national and European courts to address systemic shortcomings in the law-making process across European countries. This project seeks to gather vital theoretical and practical information for challenging defects in law-making, enhance the knowledge and skills of individuals involved in strategic litigation, and establish cross-border cooperation to implement litigation strategies effectively. By building on the foundations laid in my book and my collaboration with civil society organizations, I aim to drive practical and impactful change in legal systems.

For more information and to purchase the book, click here.