The Venice Commission and the Lawmaking Process in Constitutional Reconstruction

Abstract

Over the past two decades, the Venice Commission has played a central role in promoting constitutional reform and the rule of law across Europe. Through its soft law instruments—most notably the Rule of Law Checklist—it has shaped standards for democratic governance. Yet its engagement with the lawmaking process remains largely formalistic, prioritizing procedural legality over the substantive democratic integrity essential for re-democratization. Using Poland as a case study, this article examines how this formalist orientation has limited the Commission’s capacity to support constitutional recovery in contexts marked by systemic legal degradation. It argues that legislative processes are not mere technical mechanisms but vital components of democratic legitimacy and resilience. Framing the analysis within the emerging concept of post-formal constitutionalism, the article calls for a more substantively engaged, context-sensitive approach to assessing and guiding the democratic lawmaking process. It concludes that the Commission, if willing to adapt, is uniquely positioned to help further shape and restore democratic lawmaking standards (also) in post-illiberal settings.