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.

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.

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.

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 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.

Reflecting on the Islamic law–secular law balance in past Afghan constitutional regimes and contemporary Taliban rule, this paper contextualizes Afghan constitutionalism in a broad spectrum of constitutional traditions present in other Islamic law states (ILS). Though the Taliban are reticent about their plans for a constitutionally-anchored society, similar to processes elsewhere, the organization’s previous drafters relied upon the country’s previous constitutional regimes and on other countries’ constitutions. Though necessarily aspirational, we argue that taking lessons from the Taliban’s history, Afghanistan’s own rich constitutional tradition, and contemporary ILS’ approaches—combined with international cooperation—there may be a way forward for a Taliban-led Afghanistan: one grounded in a stable constitutional order that protects the dignity of Afghan people. But since the Taliban regained control of the country, its people have endured extreme social and economic hardship. The ongoing crisis cannot be ignored. This paper does not seek to disregard or minimize Taliban-induced atrocities; rather, by exploring the history of Afghan constitutionalism through a different lens, it looks to provide a building block for a future, more stable solution. While the existing scholarship focuses mainly on the current Taliban practices, we examine past Afghan constitutions and propose the potential for specific legal solutions in the context of the country’s robust constitutional tradition. We rely on qualitative and quantitative data in analyzing the nexus between secular law and Islam-based constitutional language, highlighting certain trends and patterns. In an important way, therefore, our research places the Taliban efforts at constructing a legal system as part of an evolving—however jolted by the Taliban—constitutional process.