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.

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.

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 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.

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.

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.

This study examines the landmark rulings in the “BBI Case”, adjudicated successively by the High Court, Court of Appeal, and Supreme Court of Kenya, from the perspective of comparative political process theory [“CPPT”]. The BBI case involved a constitutional challenge to a set of seventy-four proposed constitutional amendments to the Constitution of Kenya, 2010. It raised a host of issues, ranging from the applicability of the basic structure doctrine, the role of the President in initiating constitutional change, Presidential immunity, and Fourth Branch institutions, among others. This paper analyses two crucial issues in the case: the articulation – for the first time in its history – of a process-oriented basic structure doctrine, by the High Court and the Court of Appeal; and the concurrent holding of the High Court, the Court of Appeal, and the Supreme Court prohibiting the President of Kenya from initiating a constitutional amendment through the “popular initiative” route. It argues that on these issues, the Kenyan courts’ reasoning constitutes a creative, unique, and valuable contribution to CPPT, in the context of constitutional change. When faced with the possibility of abusive amendments within the framework of a two-tiered amendment process, the Kenyan courts responded by setting out rigorous procedural constraints upon the amendment power. As a corollary, the role of the judiciary under this approach is not to invalidate or veto abusive constitutional amendments, but to ensure that they pass through a substantive, rich, and deep process of public participation.

Comparative Political Process Theory or Comparative Representative Reinforcement Theory (CPPT/CRRT) is an emerging scholarly field that theorizes about the courts’ role in the broader comparative universe. Considered an intellectual descendent of John Hart Ely’s work in the American context, CPPT/CRRT emphasizes the courts’ role in preventing democratic backsliding, promoting equality, enhancing the efficacy of democratic institutions, fostering deliberative processes, and addressing the failures of majoritarian politics. CPPT/CRRT scholars generally advocate broadening judicial powers and capabilities to fulfill these roles. This article examines the practicality of such judicial responsibilities through the lens of the review of constitutional amendments in India. It concludes that, despite the theoretical aspirations of CPPT/CRRT, courts are unlikely to meet these expectations in practice due to their institutional limitations. The positive outcomes of judicial interventions tend to be more modest than the protective and proactive actions envisioned by CPPT/CRRT proponents. Moreover, the modest benefits also come at the cost of the potential adverse impacts that an empowered judiciary may impose on the constitutional fabric. Consequently, this article suggests a need for recalibration of CPPT/CRRT scholarship wherein its goals are moderated and its aspirational objectives balanced against the potential adverse effects of an empowered judiciary on constitutional systems.

The European Court of Human Rights has long been cast as a defender of democracy in Europe. Yet, this idea has not always been at the core of the Court’s perception in the literature or indeed aligned with its jurisprudence which are often viewed in more Dworkinian terms. We suggest that there are good reasons, however, to take this idea more seriously in line with some of the early discussions on the function of the Convention. We argue that a good way to flesh out this idea is by drawing on the recent discussion on comparative representation reinforcement, sometimes labelled comparative political process theory, which builds on earlier work by US constitutional theorist John Hart Ely. Such an – expanded and updated – Elyian approach, we believe, has much to offer not just for domestic constitutional courts around the globe, but also for a supranational human rights court such as the ECtHR. We spell out what this might mean for the Court’s jurisprudence with reference to a few key areas of jurisprudence and the protection of minority rights in particular and sketch some implications for when to exercise restraint and when to intervene in a robust manner.