Constitutions are the most important legal foundation of politics. At the same time, the existence of a viable parliamentary opposition has been regarded one of the most distinctive characteristics of democracy. Bringing the two perspectives together, the principle of opposition can be constitutionalized to gain the highest status. Importantly, we refer to norms recognizing the opposition as such. Such counter-majoritarian rules are distinct because they empower opposition forces irrespective of their seat share and explicitly acknowledge that power should not be monopolized. While our subject has attracted little interest from comparative constitutionalists, it is too important to be overlooked. This is particularly true for autocratizing regimes where incumbents seek to use legislative lawfare to repress their opponents. Empirically, the study focuses on Africa, which proves revealing for various reasons. Among others, it addresses the critique that constitutional law studies often concentrate on usual suspect cases used to reveal purportedly universal insights. Our exercise in comparative constitutional law leads to two main conclusions that go beyond the continent. First, while we find a high number of opposition-related rules, the variation in design details and scope suggests that referring to the principle of opposition in an abstract manner is somewhat obscuring. And second, the obvious virtues of constitutionalizing dissent face noteworthy pitfalls since pertinent rules can lack legal clarity and even suppress dissent. Hence, the dividends of nominally democratic rules might be smaller than expected even if constitutional designers sincerely intend to fully uphold them in practice.

In the same vein as John Hart Ely, but with a modern, global focus, a new wave of comparative constitutional scholarship focuses on the role of courts in protecting and promoting democracy. This article introduces this new wave of ‘comparative political process’ theory (CPPT), and explains its origins and utility, but also suggests it is best conceptualized as a form of ‘comparative representation-reinforcing’ theory (CRRT). Labels are not everything, but they do matter. And CRRT better captures the varieties of different forms of judicial democracy protection and promotion, and avoids any false claim of neutrality for such an approach.

Taking Global Constitutionalism as an agora, a platform for international interdisciplinary discussions this article asks a question about the state we are in with regard to the international order as an order that is not just a ‘rule-based order’ but also more substantially, a ‘legal order’ based on the rule of law. The topic is illustrated with reference to examples of ‘contested compliance’ i.e. objections to implementing international law and/or international rulings by international actors on behalf of signatories of states parties of a treaty. Three questions guide this discussion. The first is a question of normative change: are we facing a change regarding United Nations member states’ respect for and handling of the rule of law, or is a larger change of international law itself imminent? The second is a question about the effects of the shift from ‘normal’ contestations of norms to ‘deep’ contestations of the international order itself. And the third is a question about pluralism and diversity: are the UN Charter Order’s institutions, conventions and organisations sufficiently equipped to respond to an ever more diverse range of internationally, transnationally, and sub-nationally raised justice-claims? The article elaborates on each of the three themes in light of the current situation of contested compliance with obligations under international law.

This Introduction provides an overview of the topics covered in this special issue on ‘Academic freedom: Global variations in norm conceptualization, diffusion and contestation’, which explores what academic freedom means, how this may vary on a global level, how the norm spread around the world and what current contestations look like. The Introduction defines some terms essential to this debate, such as the freedom of science, academic freedom, freedom of scientific research and the right to science, and offers an analytical framework for the various contributions of the special issue. This includes, in particular, a distinction between illiberal and liberal science scripts and their relationship with academic freedom, as well as between different forms of contestations and limitations of academic freedom. Authors from varying disciplinary and regional backgrounds address different aspects of this theme in their respective contributions, of which the introduction gives a brief summary.

This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

This article details the concept of constitutional embedding and demonstrates its utility in four country-rights cases. Constitutional embedding refers to the process by which some understanding of constitutional rights comes to take root in everyday life, moving from words on paper to something that shapes expectations and behavior. The degree of constitutional embedding varies along two dimensions: social and legal, or how individuals and groups operating in the social sphere understand and relate to constitutional rights, and how those working in the formal legal sphere do so. In a global political climate defined by democratic backsliding, powerful vested interests, and backlash against moves toward equality, the status of constitutional rights and how they become and remain embedded is doubly important. The constitutional embedding framework highlights how interactions between legal elites and ordinary citizens constitute the extent to which constitutional law influences daily life. The framework has broad applicability across contexts and rights domains.

Lon Fuller’s fictional Purple Shirt regime, Victor Orbán’s illiberal democracy in today’s Hungary and the Kaczynski brothers’ recently ended unconstitutional republic of Poland are three examples of a ‘broken democratic polity’ in which many aspects of the rule of law and constitutional democracy have been compromised and cannot be fixed without a qualified majority, even if democratic forces come to power. In this article, I address the question of whether illegal state action of a democratic government is an appropriate means of restoring legitimacy to what I call a ‘broken’ polity. Put differently: Is it morally defensible for a new democratically elected government to override and replace the rules of illiberal constitutional reform in violation of formal legality? If so, under what conditions? I argue that a positive answer to this question is justified if we adopt a neo-republican approach to politics and legitimacy.

He seemed to enjoy portraying himself as mostly without allies – a principled contrarian. This was central to his self-consciousness. And John was very conscious of himself.1

This article traces how the ‘freedom indispensable for scientific research’ was introduced into the International Covenant on Economic, Social and Cultural Rights (ICESCR). The review of the drafting history covers ICESCR Article 15.3 and that of its precursor, Article 27 in the Universal Declaration of Human Rights (UDHR). It pays particular attention to arguments presented during negotiations over the UDHR (adopted in 1948), as well as over the ICESCR (adopted in 1966), and it reflects on observable norm entrepreneurship. Following the end of the Cold War, details on the right to science and the status of higher education personnel were further elaborated in soft law, notably in the form of two General Comments and two UNESCO Recommendations. These specifications and the earlier traveaux préparatoires reveal a multifaceted and rich debate about science, development, dignity and freedom at the United Nations, including positions that span variations of a liberal science script as well as persistent illiberal contestations.

This paper seeks to understand modern comparative reflections on John Hart Ely’s work through Comparative Political Process Theory or Comparative Representation-Reinforcing Theory, and how such approaches can be augmented through the lens of therapeutic jurisprudence. It argues that the legitimacy of courts’ actions (or inactions) in such settings can be understood through their potential to strengthen democratic institutions rather than do them harm, acting as a re-set or recalibration of the democratic landscape. By buttressing representation-reinforcing approaches with therapeutic understandings, curial interventions designed to shift longstanding democratic impasses or blind spots are likely to carry much greater institutional legitimacy. By applying this lens to a series of case studies, the paper highlights the normative contribution that therapeutic jurisprudence can provide to representation-reinforcing action and to the design of such approaches.

This article addresses power-sharing constitutions that include powers of veto wielded by discrete ethnonational groups. Such constitutional arrangements – seen, for example, in Northern Ireland and Bosnia – have often prompted severe deadlock, a problem that in turn threatens democratic functioning and raises the risk of renewed communal violence. We consider the use of ‘umpires’ of power-sharing constitutional systems to vet the use of vetoes and (potentially) to prevent their overuse or misuse. Power-sharing umpires are not uncommon in practice. However, as yet there is little scholarship evaluating how, in substance, power-sharing veto umpires should approach their task. Relying on deliberative democracy theory, the article outlines three forms of ‘deliberative agreement’ that, in principle, deeply divided groups may reach in the course of policymaking. It goes on to explain how existing proportionality doctrines drawn from federalism and rights cases can be imported into the power-sharing context to ‘scaffold’ these broad ideals. This approach, it is argued, may provide a more detailed, coherent and practically workable approach to umpiring power-sharing constitutions.

This article explores the global spread of domestic codifications of academic freedom norms by mapping constitutional provisions over time and space. Drawing on the new Academic Freedom in Constitutions dataset, the study evaluates several hypotheses that may explain the norm’s geographically diverse, yet comparatively limited, adoption in 52 per cent of constitutions today. The descriptive analysis of constitutional adoption patterns suggests that the as yet large pockets of absence are a result of the fact that academic freedom was not included as a fundamental right from the early days of constitution-making, combined with its close link to higher education development, thus locking many countries into a path dependency of early constitutions exclusive of academic freedom norms. The availability of relevant models in nearby countries, together with higher education expansion, are key facilitators of academic freedom adoption at the critical time of a constitutional reform process. Diverse countries in different regions acted as norm entrepreneurs, often motivated to domestically protect academic freedom, thus leading to the emergence of regional and other clusters of academic freedom reference types. A sizeable proportion of insincere adopters further suggests that, in some regions, academic freedom serves as a legitimizing international norm.

Liberal democracies and illiberal regimes alike recognize academic freedom as a norm that enables scientific progress. This article investigates the extent to which the globalization of academic freedom has been the result of a global diffusion process in addition to national developments, such as modernization and democratization. Academic freedom spread as part of a wider liberal script after World War II. The empirical analysis shows, however, that the codification of academic freedom at the international and regional level has been slower compared with other parts of the liberal script. To the extent that academic freedom has emerged as a global norm, it has happened through decentralized diffusion processes driven by higher education institutions and civil society networks. Different views on meaning, scope and emphasis made international and regional institutions norm takers rather than norm shapers. They only started to systematically institutionalize academic freedom into the liberal script when networks of scholars and higher education institutions mobilized internationally amidst increasing contestations of their academic freedom since the turn of the millennium.

Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.

How should democratic communities decide who should belong? Recent debates about issues such as voting rights for prisoners, denationalization policies or citizenship tests raise this fundamental democratic question. While many scholars argue that decisions about citizenship and voting rights should be more inclusive of subjected outsiders and more independent from electoral partisan politics, we still lack institutional proposals for inclusive and independent membership politics. This article contributes to the nascent institutional turn in the debate about democratic membership boundaries. My aim is to show that normative debates about membership politics can benefit from recent advances in democratic theory on sortition-based democratic innovations, constructive representation and systems thinking.

I argue that membership politics could be democratized by introducing a randomly selected political institution, which I call ‘boundary assembly’, that equally represents members and nonmembers and is charged with making binding decisions on a subset of a state’s membership questions. I argue that the strongest objections to empowered randomly selected assemblies (shortcut objection, alienation objection, capture objection, technocracy objection) lose most of their force in the ‘extraordinary’ political context of decisions on membership boundaries. Boundary assemblies cannot ‘solve’ the democratic boundary problem, but they could be a first step toward more democratic membership politics.

This article seeks to understand the evolving democratic legitimacy demands of the United Nations Framework Convention on Climate Change (UNFCCC) by reflecting on the challenges of catering to a globally affected public and enhanced participation opportunities given to some highly affected groups. It argues that the principle of democratic equality at a global scale fails to take account of inequities in affectedness and power within the demos and, instead, an approach that strives towards a principle of proportionality based on degrees of affectedness could enhance the UNFCCC’s democratic legitimacy. This builds on existing scholarship identifying a turn to an affectedness paradigm in international institutions more generally and the emerging influence of affected peoples organisations, characterised by the more direct forms of representation they facilitate and emphasis placed on the affectedness of their constituents to claim recognition and influence. The normative appeal of giving enhanced participatory opportunities to those most affected by climate governance is weighed against its challenges and risks. It is concluded that, despite conceptual and practical difficulties connected to the subjective nature of affectedness, a pragmatic approach that treats such a proportionality principle as a democratic ideal to be strived towards could have a legitimising effect on the UNFCCC.

In Latin America, the notions of academic freedom or the freedom of science have not had the overarching influence in defining the prerogatives of scholars and the university that we see them exerting over the experiences of Western Europe and the Anglosphere. The governing notion, from whence all other freedoms emerge, is that of university autonomy. In Latin America, university autonomy evolved over the twentieth century as a protection of the university against the encroachment of governments – often authoritarian or outright dictatorial – so they could carry out their missions as they defined them. In Latin America, the locus of what in Europe is understood as scientific freedom is vested in the universities, not in the professoriate. It is assumed that free universities will foster an environment of academic freedom within. The contemporary contestations of university autonomy in Latin America fit squarely into the liberal script, as they seek to make universities more responsive to policy goals in the areas of higher education quality and accountability, efficiency and productivity, expansion of public or private provision, access and equity. Often, universities and their associations have raised autonomy as an objection to these policy agendas.

John Hart Ely’s theory of judicial review was centrally concerned with the role of courts in preserving democracy in the constitutional context of the United States. At first blush, then, the comparative turn toward Ely might strike a jarring note. This article contributes to the discourse on comparative political process theory, or comparative representation-reinforcing theory, by examining the judicial role in preserving democracy, as well as the role that courts can play in constructing and facilitating constitutional democracy, particularly in fragile democracies. It considers three illustrative examples: the United Kingdom Supreme Court decision overruling the prorogation of Parliament; the Malaysian Federal Court’s development of a constitutional basic structure doctrine; and the Malawi Supreme Court’s decision invalidating the outcome of a presidential election. It concludes with reflections on juristocracy and distrust, and the reach (and limits) of the endeavor to expand Ely’s theory globally.

Judicial remedies are the critical means by which courts worldwide enforce and implement constitutional rights. Yet constitutional remedies were largely overlooked by early political process theorists, such as John Hart Ely. Contemporary comparative political process theory (CPPT) or comparative representation-reinforcing theory (CRRT) pays much greater attention to remedial questions, including the use of a range of ‘weak’ judicial remedies. These CPPT/CRRT scholars have highlighted the risks as well as advantages associated with the use of such remedies, but they have not reached any consensus on how to strike this balance and optimise their use. The article therefore draws on one specific recent version of CPPT/CRRT, namely the theory of ‘responsive judicial review’, to propose one way to strike this balance, namely: In cases impacting the ‘democratic minimum core’, courts should generally prefer strong remedies, with delayed relief only applied for prudential reasons; for other cases, courts should deploy more dialogic remedies, but generally these delayed or suspended remedies should be accompanied by a judicial statement of pre-defined strong remedies that take effect automatically in the event of legislative inaction. In this way, this article suggests that courts can give weak remedies ‘bite’, and hence promote actual legislative debate and dialogue, rather than incentivise legislative inaction after their rulings.

In contradistinction to totalitarianism, Claude Lefort theorised a democratic form of society as one primarily characterised by indeterminacy, absence of ground, and by extension openness to the event. In maintaining this form of society, Lefort reserved a key role for human rights. The aims of this paper are twofold: first, I argue that, despite the fact that Lefort never developed a theory of constitutions, an important role can nonetheless be ascribed to them. I hypothesise constitutions to be key in democratic society’s symbolic representation of itself to itself. Second, I then examine what the repercussions are for this idea when Martin Loughlin’s account of constitutionalism is taken into account. Loughlin’s argument suggests that, while constitutions may have been important safeguards against totalitarianism, constitutions today threaten to become total themselves. I conclude by indicating the populist response as a point of convergence between Lefort’s and Loughlin’s analyses.