Understanding the Global Regulatory Process
Edited by Francesca Bignami and David Zaring
Chapter 13: The law of lawmaking: positive political theory in comparative public law
Our topic is the law of lawmaking—both in the legislature and in the executive. We compare the United States with South Africa, Germany, and the European Union to show how fundamental differences in institutional design shape the nature of “due process of lawmaking.” Presidential and parliamentary forms of government frame the lawmaking process, and fundamental constitutional structures and values influence constitutional court review. We use positive political theory to explain some of the observed differences and evaluate the outcomes through the lens of democratic accountability. The basic empirical differences are clear and striking. Under the United States presidential system, the federal courts do not review internal legislative processes to check their democratic efficacy. Rather, legislative deliberations only enter the picture, if at all, as an effort to convince the courts that a statute has a valid substantive justification. In contrast, review of executive rulemaking is fundamentally concerned with the public accountability of rulemaking in agencies and cabinet departments. The German Constitutional Court is more likely than the U.S. Supreme Court to scrutinize the factual basis of statutes, but this is partly because the German list of constitutional rights includes many more substantive policy areas than does the U.S. document. Hence, the German Court reviews the legislative reasoning behind a broader range of statutes than in the U.S. This enterprise, although nominally substantive and rights-based, may influence legislative procedures. In contrast to the U.S., however, the German administrative courts provide almost no review of rulemaking procedures inside the executive or the regulatory agencies.
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