We are increasingly confronted by a pressing question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government? This working paper series aims to provide a space to showcase works in progress and forthcoming publications on these challenges.

The series reflects the belief that repairing democratic decay presents distinctive challenges that differ from both major constitutional change in broadly stable democracies and transitions to democracy from ‘hard’ authoritarianism, which require novel theoretical and conceptual frameworks.

Submissions

Submissions can be sent to: democraticdecay@gmail.com

Please include the subject: ‘Submission – Constitutional Repair’ and a short statement indicating how the submitted paper fits the series theme.

Themes

The series welcomes submissions on themes including, but not limited to:

• Paradigms of political and constitutional transition;

• Paradigms of political and constitutional transition;

• Repairing institutions (e.g. parliament, fourth branch organs, public service);

• Court reform and court-packing;

• Constitutional amendment and replacement;

• Bypass institutions (where existing institutions cannot be replaced);

• Repairing electoral processes, oversight, and laws;

• Repealing and reversing legislation;

• Political reform pacts in contexts of decay;

• Political party regulation and reform;

• Deliberative innovations and reform processes;

• Repairing and re-making norms and conventions;

• Repairing information ecosystems;

• Transitional justice;

• Lustration;

• International dimensions of repair.

Abstract: We are increasingly confronted by a pressing question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government? This study contemplates the transnational craft of constitutional repair and elaborates a novel syncretic theory of repair. Integrating diverse theoretical frameworks and comparative case-study analysis, the paper pursues four normative arguments: (i) assessing ‘constitutional damage’ requires a methodological design alive to conceptual clarity, disciplinary and perspectival limits, context, and core damage; (ii) ‘constitutional repair’ is best understood as a distinct paradigm of constitutional transition separate from both major constitutional change in stable democracies and democratic transitions from authoritarianism; (iii) reparative measures departing from rule-of-law norms can be deemed legitimate subject to both context and conditions; and (iv) constitutional scholars should approach onerous and risky processes of formal constitutional change with extreme caution if sub-constitutional fixes are sufficient to achieve initial repair.

Abstract: US debates on reforming the Supreme Court, including controversial arguments to break the norm against court-packing to repair the democratic system, have generally focused on historical precedents and the domestic system, with scant comparative analysis. However, the US debate raises fundamental questions for comparative constitutional lawyers regarding the paradoxes of democratic restoration in contexts of democratic decay, framed here as a distinct category of constitutional transition. This study argues that sharpening our analytical tools for understanding such reforms requires a novel comparative and theoretical approach valorising the experiences of Global South states and drawing on, and connecting, insights across four overlapping research fields: democratic decay, democratisation, constitution-building, and transitional justice. The paper accordingly pursues comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina to offer a five-dimensional analytical framework: (i) democratic context; (ii) articulated reform purpose; (iii) reform options; (iv) reform process; and (v) repetition risk. In doing so, the paper seeks not to present a rigid check-list for evaluating the legitimacy of contested reforms, but rather, to foreground important dimensions of reforms aimed at reversing democratic decay as an emergent global challenge for public law meriting closer attention.