Due Process of Lawmaking and the principles of legislation: a comparative perspective

Recently, there have been discussions about the so-called “due process of lawmaking”. Although the term can be traced back to an article of Hans Linde (“Due Process of Lawmaking”, Nebraska Law Rev. 55, 1975), it has gained attention in academic writings and constitutional courts decisions in different countries such as Brazil, Israel, Germany, United States and South Africa and also in the European Union institutions.
Drawing from these experiences, the paper proposes to examine the relationship between the due process of lawmaking and the principles of legislation. It will be shown that at an expanded understanding of due process of lawmaking points not only to legal rules but also principles that underlie basic democratic constitutional values. This opens questions related to the institutional design and judicial review of the rationality of the legislative process that are being addressed by constitutional courts decisions.