This chapter considers the role courts play in protecting fundamental rights. It addresses three questions. What role do domestic courts play in the protection of rights in different constitutional settings? In examining key elements of constitutional design, the chapter show how there are significant variations in how courts protect rights across the world. Secondly, what role should courts play in the adjudication of rights? Here it is argued that courts in their ordinary work, applying legislation and the common law, do and must protect rights. With regard to the more contested question whether courts should protect rights under a constitutional bill of rights, the chapter argues that the case for such a role for courts is at its strongest in certain circumstances but that it cannot be claimed that in all circumstances courts should be conferred with this power. Finally, the chapter considers the current debates in the United Kingdom concerning a possible repeal of the Human Rights Act, and withdrawal from the European Convention of Human Rights, and expresses dismay at the prospect of the repeal of the Human Rights Act, given how elegantly that Act combines protection for rights by UK courts with the doctrine of parliamentary sovereignty.

This chapter defines time inconsistency as the difference between the actual frequency of amendments and the one calculated on the basis of constitutional rigidity (Chapter 6). It proceeds to demonstrate that time inconsistency is proportional to the length of the constitution in all democracies. The reason is that “length” is correlated with “detail” (that is, the number of words per subject). This chapter provides empirical evidence that the length of constitutions is related to lower per capita income and higher corruption. These findings are consistent with the empirical research in US states that demonstrate that length of constitutions has a negative impact on GDP per capita, a positive one on unemployment, a positive one on Gini coefficients (inequalities), and a negative one on policy innovativeness (Brown 2021).

This book “follows the decisions” and studies how in different countries amendment rules have a fundamental impact on how easy it will be to make amendments and how frequent and/or significant these amendments are likely to be. The amendment rules specify how many institutions are required to approve the change, what the conditions are (quorums, qualified majorities) in each one, and whether these rules operate in a conjunctive or disjunctive way. All these conditions have specific effects on the constitutional rigidity of a country, which in turn is expected to have effects in three different directions. First, the frequency and significance of amendments are inversely related with the constitutional rigidity of the country and its variance. The more significant the amendments, the stronger this relationship. Second, the length of the constitution is correlated with a series of negative results like time inconsistency as well as economic variables. Third, constitutional rigidity affects judicial independence of the supreme or constitutional court and its variance. The main contribution of this book is the combination of these ideas in a coherent framework, from theory to case studies or application to all democracies.

Using the veto players approach to measure constitutional rigidity, this chapter uses the rigidity index calculated in Chapter 2 for all 103 democracies (countries above five in the Polity scale). Given that the lack of constitutional rigidity is a necessary but not sufficient condition for frequent and/or significant constitutional amendments in democratic countries, the appropriate estimation model is that of heteroskedastic regression. I create a new dataset on the significance of constitutional amendments and estimate the model which corroborates the theoretical expectations and demonstrates that more significant amendments lead to a better fit. Robustness of the results is examined with all possible cutoff points for democracies in the Polity scale. The model is also tested against one of the cultural theories introduced in Chapter 3.

This chapter attempts two tasks, conceptual and normative. First, I argue that constitutions need not include rights as a matter of logic: it is possible for a set of laws and conventions to qualify as a genuine constitution of a state or legal system, even if they do not contain any rights – or almost none. Nonetheless, secondly, I argue that rights-free constitutions miss out on something valuable: it is hard to see non-rights constitutions as intended to serve citizens qua individuals. In particular, I argue that there are strong reasons in favour of constitutional rights on both natural rights and democratic grounds. I end by explaining the way in which rights function as limits on government power: we will see that they need not be the limits that constitutionalists endorse.

What does it mean “to tolerate” in a post-Christian and post-secular state? This chapter argues that antecedents of contemporary conflicts over diversity in Europe can be found in early modernity, specifically in early modern practices of toleration, which impacted on both the belonging and the visibility of minorities. New forms of intolerance pertain to the position of religious, ethnoreligious, and sexual minorities in public life, echoing the concerns of the public visibility of minorities inhering in historical Christendom. The political articulation of certain groups as “other” to “the nation” is increasingly mediated through constitutional repertoires, such as constitutional revision and amendments, developments in the hermeneutics of constitutional concepts, or pseudo-constitutional behaviour. This chapter introduces the main themes: tolerance and intolerance, constitutionalism, secularisation, and their significance across the liberal–illiberal divide.

This chapter offers an in-depth reflection on the significance of time and temporality to the practice of toleration. Time-shaped Christian imagining of the other as “becoming” and growing into its own image. Constitutions, too, exist within certain temporal rhythms: they bind people within a specific space and in a specific time to a set of fundamental rules and arrangements. The binding of time by constitutions is an assertion of power in the saeculum, but also an expression of a need to better live with diversity. It is vital to the “emancipation” of modern constitutionalism from toleration that the constitution does not require a dominant or exclusive set of temporalities to establish order. Rather, constitutions need to allow for citizens to keep time differently, for example through the protection of rights and freedoms.

The burgeoning literature in comparative constitutional has not devoted sufficient attention to the constitutional functions of political parties, nor has it systematically explored the constitutional law of electoral design. This volume examines the constitutional treatment of parties and elections both as a matter of constitutional theory and from the perspective of historical and contemporary practice. To this end, it draws together a series of contributions from a diverse range of scholars working in distinct disciplines. Political scientists tend to treat political parties as their key object of study, while comparative constitutional lawyers have largely ignored them, preferring to focus on other institutional question. What follows brings each perspective into conversation with the other.

American Indian tribes are not often considered in comparative constitutional law but should garner more attention. Many tribes are dynamically remolding their constitutional structures. Nowhere is this dynamism more on display than in the re-shaping and re-structuring of tribal democratic institutions. The takeaway from this chapter is that tribal governments are experimenting carefully with different democratic structures, and the need for institutional change is seen as a moment of growth rather than a failure in their practice of iterative and evolutionary self-government. Reforms have become an almost natural – if not celebrated – part of perfecting their government structure.

Recent years have witnessed the rise of a range of authoritarian populist, illiberal, far-right, nativist, and extremist parties. We have seen democratic structures threatened or incrementally dismantled through the subversion of an established democratic party by an outsider or ascendance of the extremist wing of a right-wing party. Parties and party leaders occupying an ill-defined space on the political spectrum today generally present a much greater threat to democratic governance than overtly antidemocratic fringe outfits. The ambiguity of such parties, their growing size, their entry into government, the subversion of “good” democratic parties by a “bad” leadership, and the rise of the “shadow party” mean that contemporary political party threats seriously frustrate the possibility of remedial action afforded by existing public law and policy mechanisms. They also require us to reflect anew on crafting novel remedies and to revisit our assumptions about parties as creatures of central constitutional importance.

Recent decades have seen a sharp rise in constitutional provisions regulating core aspects of democracy, including the rules about parties, voting, and elections. The trend is apparent in both democracies and nondemocracies, although democracies tend to constitutionalize slightly more matters. Constitutionalization can help democracy by tying the hands of politicians. Looking at cross-national data, we find that constitutionalizing democracy is correlated with higher levels of democracy. Constitutionalization of democracy carries advantages as well as risks. We illustrate the dynamics with short case studies of Kenya and Thailand.

The theories of rights articulated in the Americas during the eighteenth and nineteenth centuries were innovative in their own time and have exerted widespread influence ever since, but they were marked by profound contradictions that spurred generations of critical engagements. This chapter offers an explanation for these dynamics by considering the social position occupied by rights theorists within the Americas. It begins with the British and Spanish American independence movements, considering the roles of universalist and particularist rights claims within the ideologies of the movements’ European-descended leadership. Next, it explores how, in the instances where Americans that occupied less privileged social positions took over the leadership of struggles for independence, the kinds of rights claimed, the grounds upon which these rights were claimed, and the range of persons on behalf of whom rights were claimed varied in such a manner as to reflect the difference of leadership. Finally, it traces the ways that Americans initially excluded from enjoyment of the rights claimed by the independence movements and enumerated in the Americas’ early constitutions sought both recognition as equal rights-bearers and revisions to the rights that they and other Americans bore over the course of the nineteenth century.

In this treatise Bartolus applies the Aristotelian schema of constitutions to the city republics of his own day and argues that for the smallest such cities, such as Perugia, where Bartolus lived and worked, the most appropriate form of government is ‘government by the people’ or regimen ad populum. He argues that aristocracy is preferable in larger cities such as Venice and Florence, and then corrects Giles of Rome’s universal endorsement of monarchy as the best constitution by limiting it to much larger political organizations which hold sway over other peoples. He argues that where monarchy is appropriate at all, elective monarchy is superior to hereditary, and established by law for the Roman empire and for the church. Bartolus uses Roman constitutional development as presented in the Roman law to exemplify the different systems of rule brought into being by the growth in numbers and influence of a people. He casts his treatise in part as a lawyer’s version of the Aristotelian constitutional analysis made popular by the theologian Giles of Rome. The concept of the common good is central to Bartolus’s treatment.