UC Berkeley

In this text, I argue that the legislative process has a legal nature, as opposed to its more apparent political facet, and that breaches of procedural lawmaking rules are incompatible with such a characterization. To defend such a viewpoint, I approach the topic in three parts.The first part addresses legislatures’ procedural rules’ force of law, navigating through U.S. and Brazilian cases. Against views that take legislative procedural rules as non-mandatory and merely coordinating tools, I develop my argument upon Hans Kelsen’s and H.L.A. Hart’s theorizations and state that these provisions belong to (hard) law. Hence, though legal interpretation challenges may blur the distinction between the political and legal facets, I affirm that legislative procedures have the force of law and, as such, are binding. The second part deals with justification and overseeing mechanisms. I argue that there are several reasons why lawmakers should abide by the legislative procedural rules. First, it is a matter of the rule of law, meaning that the participants in the lawmaking process have the right to play according to the pertinent provisions. Second, compliance with the established procedures safeguards participation and the flow of diverse opinions and, thus, democratic representativeness. Third, rules’ observance fosters transparency, shedding light on a bill and its motives. Finally, I state that compliance with procedural rules should result from enforcing tools managed by legislators and third parties, such as non-partisan officers in legislatures and, under some restraints, the judiciary. The third part addresses a specific situation: the enactment of executive decrees, provisional measures, directives, or anything similar, with the force of law, to address emergencies. I defend that the misuse or abuse of these expedited lawmaking instruments is incompatible with the legal nature of the legislative process. First, I analyze the ancient Roman Republic’s approach to the circumvention of serious menaces and the theories of John Locke, Carl Schmitt, and Santi Romano in this regard. Then, I assess how governments in Brazil, Italy, and the United States usually take advantage of those instruments not to address threats but to bypass the burdens of ordinary legislative procedures. To avoid such an outcome, I argue that legislatures should enhance their oversight capacity under emergencies or pressing situations while simultaneously providing the judiciary with more specific reviewing standards.