Book Launch: Entrenchment of Democracy

19 March 2025

On 19 March 2025, the Global Centre for Democratic Constitutionalism, along with LSE and the Centre for Transnational Legal Studies, organised a panel to celebrate the launch of The Entrenchment of Democracy: The Comparative Constitutional Design of Elections, Parties and Voting (Cambridge University Press, 2024), edited by Tom Ginsburg, Aziz Huq, and Tarunabh Khaitan.

In her opening remarks, the event chair, Professor Erin Delaney (UCL Laws), highlighted the book’s aim of placing political parties and elections at the heart of constitutional studies. She noted that the book’s contributors come from both legal and political science backgrounds, an interdisciplinary focus that was also reflected in the panellists at the event. She then outlined the book’s structure: the first section situates the book within broader constitutional theory, the second examines the constitutionalisation of parties from both theoretical and empirical perspectives, and the third focuses on specific institutions.

Following the introductory remarks, the first discussant, Dr Leah Trueblood (University of Oxford), gave her comments. She reiterated that the book sets out to understand how constitutional law shapes electoral democracy and commended the authors for moving away from the American preoccupation in comparative constitutional law, as well as for shifting from courts specifically to law more generally. She also posited that the authors provide a compelling account of legal entrenchment but questioned whether the authors’ notion of entrenchment was purely legal or whether it included a political side as well.

The second discussant, Professor Richard Bellamy (UCL), commended the book authors, noting how their work over the years has informed his own thinking about political constitutionalism. In his comments, he cautioned against an institution-focused approach, advocating instead for one that is based on values. A key feature of democratic backsliding, he noted, is the willingness of political actors to flout conventions and weaponise constitutional structures for their own advantage. And, while electoral democracy is designed to reward and sanction political behaviour, the current state of electoral competition undermines this function. In this context, he expressed scepticism about whether legal entrenchment would meaningfully address these issues, arguing instead for a values-centred approach, focusing on the substantive values that should guide civil servants, politicians, and citizens in a democratic system, along with incentives within the system to promote this behaviour.

The third discussant, Professor Thomas Poole (LSE), praised the book authors for successfully integrating three methodologies – jurisdiction-specific case studies, comparative empirical analysis, and empirically informed constitutional theory. He then posed a series of questions to the respondents based on these methods. On case studies, he referred to Yvonne Tew’s chapter, ‘Monarchy and Democracy in Modern Malaysia’, which examines how the monarch employed an unprecedented – though not unconstitutional – method of aggrandisement. He questioned how generalisable this phenomenon is and whether it could, in principle, occur in another constitutional monarchy, such as the UK. On comparative empirical analysis, he mentioned Aziz Huq’s chapter, ‘Courts as Constitutional Rule-Makers for Elections and Parties’, which explores the role of apex courts in strengthening or constraining democracy. He asked whether, if we conclude that courts and legal institutions are not the key variables shaping democratic outcomes, there might be more significant factors beyond the immediate field of vision that play a more decisive role. On constitutional theory, he cited Tarunabh Khaitan’s chapter, ‘Political Parties in Constitutional Theory’, which identifies four principles in relation to political parties but stresses that context matters and the goal should be to adopt a tailored regulatory framework that suits each system. Given this, Professor Poole asked how one could determine which precise framework is appropriate in a given context, particularly with the difficulty of anticipating future challenges.

Responding to the comments, Professor Yvonne Tew (Georgetown University) started by providing further insights into her chapter on the monarchy in Malaysia. She explained that, against the backdrop of political instability, the King intervened by implementing a process based on the constitutional provision stating that the King appoints as Prime Minister the individual who, in his judgement, is likely to command the confidence of the majority of the House of Representatives. This led to an unprecedented process in which parliamentarians were summoned to the palace for individual interviews with the King, who ultimately decided who commanded majority support and then appointed them as Prime Minister. Thus, the King played a critical role in government formation and regime change in a way that was unprecedented but technically within the constitutional text.

This situation, Professor Tew continued, raises questions about whether an enhanced role for such unelected institutions strengthens or undermines democratic entrenchment – particularly in situations where typically democratic institutions fail. She also noted that the situation raises an important point of comparison: in established democracies such as the UK, similar processes have been entrenched into constitutional conventions and rules, whereas in emerging democracies, greater flexibility may allow monarchs to expand their power in times of crisis.

The second respondent, Professor Tarunabh Khaitan (LSE), started with a comment on the concept of entrenchment. He explained that the authors were not using the term in a purely legal sense and noted that, given the nature of the volume, the book’s contributors had varying views on entrenchment. He further opined that entrenchment cannot be impossibility to change but rather whether certain rules of the game should be changeable unilaterally.

Professor Khaitan also emphasised that constitution-makers must consider how the system will withstand bad actors. He maintained that while constitutional design alone cannot solve all problems, it remains crucial. He pointed out that autocrats often invest heavily in altering constitutional design and seek to appear compliant with the rigid letter of the law – rather than with vague legal principles or conventions – suggesting that this emphasis on formal legality should prompt deeper reflection.

Additionally, Professor Khaitan noted that some things are already known about constitutional design. For instance, there is a close relationship between presidentialism and democratic fragility. Similarly, leaving boundary allocation and electoral regulation in the hands of the ruling party is a poor institutional choice. Thus, while good design is not a universal remedy, and some countries with flawed design still manage to thrive, design ultimately matters. However, he argued that discussions on constitutional design often focus too much on individual design features rather than on the systemic interactions between them. A system-based analysis, he concluded, is essential for understanding how different design elements function together within a given system.

The final respondent, Professor Aziz Huq (University of Chicago), suggested that the earlier comments from discussants press on the role of the ethical in the effort to preserve democracy, and where that ethical is located (e.g., legal texts, atextual norms and practices, economic arrangements). He then posed a question: to the extent that the ethical is located in law, to what extent is the available evidence determinative of the form that the law should take?

Professor Huq then proceeded to offer a high-level definition of democracy: the possibility of revisable and defeasible choices on the part of a polity at large. The book, he explained, assumes that if democratic institutional forms exist, they will be electoral. However, that assumption may be wrong. If we accept electoral democracy, if only for path dependency, then the challenge becomes defining the role of legal entrenchment in democratic self-governance. A system in which everything is permanently settled (comprehensive legal entrenchment) would leave no room for revisability or defeasibility, stifling democracy. Conversely, a system where nothing is settled (no legal entrenchment at all) would make an ongoing process of self-rule unworkable. Thus, a balance is required: law cannot determine everything, but it also cannot determine nothing.

Professor Huq concluded with some thoughts about what we can learn about the nature of entrenchment by looking at comparative experiences from around the world: first, we should adopt a Hippocratic approach, avoiding obvious errors that have been proven to result in democratic failure. Second, we should reject false necessities, recognising that some institutions (e.g., courts) may not be as indispensable to upholding democracy as often assumed. Finally, we should explore the full spectrum of possibilities, considering the widest range of institutional choices and striving to cover as much of that spectrum as possible.

Following the comments from discussants and respondents, there was an engaging question-and-answer session with members of the audience. At the event’s conclusion, participants suggested that the ideas in the book be teased out further in a second volume.

Watch a video recording of the event on UCL Laws’ YouTube channel, or view it directly below.