This chapter explores the ways that the concept of a “disharmonic constitution” provides a useful analytic lens for the comparative study of constitution making in religiously divided societies. We consider constitutional design strategies that enable and allow for disharmonies – including choices to include ambiguity and even contradiction within a constitutional text, as well as to defer certain questions for incremental resolution through ordinary politics rather than textual entrenchment. These strategies demonstrate the utility and even centrality of dissonances in interpreting the “unfinished symphony” that is constitutional identity. In the chapter, we explore these themes by considering constitutional design in the Turkish and Israeli cases. We highlight the ways in which the concept of “disharmonic constitutionalism” and the significance of dissonance in constitutional design point towards a toolkit of options for religiously divided societies that seek to draft constitutions that manage rather than resolve underlying tensions over questions of constitutional identity. We share with Jacobsohn an appreciation for constitutionalism as an expression of contingent and local identities, negotiated across historical processes of contestation and meaning-making with more of an evolutionary than a revolutionary character, even in countries that may undergo moments of sharp political rupture, reversal or transformation.

This Chapter first explains what the ECtHR regards as the object of review in cases where an alleged violation of the Convention is caused by legislation: is this the legislation as such (which would invite general and more abstract review), or is it the individual decision applying this legislation (which would invite individualised and more concrete review), or perhaps both? The chapter then turns to discussing how the Court has tried to reconcile its task of offering individual justice and general constitutional interpretations. Specific attention is paid in this regard to the role of precedent-based reasoning in the Court’s case law and to case-based review, incrementalism and the development of general principles. Finally, the legal effect of these general principles is discussed (so-called ’res interpretata’ or force of interpretation), in contrast to the application thereof to the facts of the individual case.

The idea of determinatio – first identified and analysed in natural law theory – is crucial for understanding international human rights adjudication. Human rights, as they appear formulated in international human rights treatises and declarations, require specification, implementation, concretisation, i.e., determinatio, at the domestic level. I argue that there are good reasons for this to be so. One such reason is that determinatio allows for the application of a norm to be sensitive to the particular circumstances in which it takes place. Determinatio entails deference in human rights adjudication, the latter being the legal consequence of the reasonable space for discretion granted to states which is entailed by determiatio in international human rights law. Close attention to determinatio allows us to see well-known doctrines of deference (such as the doctrine of the margin of appreciation, of regional consensus and of incrementalism) in a different light—not as concessions to state sovereignty, but as grounded on reasons internal to the legal practice of human rights law, of which determinatio is an integral part.

The final chapter offers a brief summary of the core arguments of the book, specifically explaining that the environmental minimum constitutes a normatively attractive and practically viable framework that translates general and abstract committments into specific and practical measures to protect the environment. The chapter then explores the overarching incremental theme of the environmental minimum, highlighting its preference for continuity with established legal categories and principles. It closes with an outlook and situates the framework in the broader legal and socio-political landscape.

Since the 1960s, the judiciary has become a key player in redistricting, and litigation has become an increasingly common feature of the decennial redistricting process. How do the courts fare when they draw the lines? We investigate the effects of court intervention in several states where federal and state courts redrew or forced changes to state legislative maps. We find that courts are only a partial solution to the problem of gerrymandering, because judicial actors are minimalistic in their treatment of redistricting and, as incrementalists, have a tendency to avoid extreme change. While the federal courts have been assertive in combatting racial gerrymandering, state courts have had only limited effect on partisan bias when they have been delegated the task of redistricting.

The USA has a decentralised statistical system of 13 ‘principal statistical agencies’ and numerous smaller official statistical programs. Formal arrangements for autonomy differ between the agencies, including various models for appointing agency heads. The Chief Statistician has a unique role, not directly overseeing statistical production but with power to review and veto existing and proposed data collection initiatives in the federal government. There is a strong political imperative to steer statistics in support of policy agendas, resulting in practice incremental expansion of statistical collections to meet new needs. Support for statistical autonomy has a pronounced partisan flavour. The US separation of powers creates a greater number of political access points into statistical programs, but also a higher degree of transparency that discourages political meddling. Administrative traditions create an imperative to secure access to the White House, and the office of the Chief Statistician acts as a gatekeeper for this access, channelling statisticians’ demands for new resources and authorities to key central agencies in the executive.

Because of the economic power of incumbent firms and the political power of multiple veto players, changes to the developmental state were usually incremental.This contributed to the protagonism of the civil service as a change agent. Drawing on three case studies, the chapter illustrates how epistemic communities within the bureaucracy guided a variety of innovations across unconnected policy arenas: fiscal, health, and anti-corruption. Although policy innovation by the bureaucracy was incremental, slow, and often restricted to particular “islands of excellence” within the archipelago of state agencies, it was nonetheless essential to the most important accomplishments of the past generation. Civil service incrementalism, however, may have made change away from the overarching systemic equilibrium of the developmental state less likely, by exacerbating the fiscal quandary, sustaining the coalitional presidential system, and suppressing demands for more radical reform.

The institutional complementarities of that marked Brazil’s political economy between 1985 and 2018 period were placed under considerable strain by the recession, fiscal crisis, corruption investigations, and political upheaval that culminated in the 2018 election of Jair Bolsonaro. An open question was whether the multiple and overlapping crises of the 2010s would destabilize the institutional equilibrium that had prevailed over the previous generation. To evaluate this question, this chapter summarizes the contributions of this manuscript to our understanding of Brazil’s political economy under democracy. It then describes how past reform efforts failed to move the political economy away from the status quo equilibrium, and the ways in which institutional complementarities shaped the pace and scope of change. It concludes with an evaluation of the “stress test” posed by the Bolsonaro administration, pointing to the importance of changes in the political realm for resolving Brazil’s long-term economic developmental challenge.

In studying the success of abortion-funding bans, Chapter 2 evaluates the rise of a strategy based on claims about the costs of abortion. In the mid-1970s, the antiabortion movement included self-described liberals and conservatives, absolutists and pragmatists, professionals and homemakers. All of these activists focused on a constitutional amendment that would have criminalized abortion, and groups like NRLC and AUL looked for laws that could reduce the abortion rate in the short term. In justifying laws like abortion-funding restrictions, pro-lifers highlighted what they described as the societal costs of paying for abortion. While groups like NARAL and Planned Parenthood reluctantly discussed the impact of abortion-funding bans on poor women, lawyers in the ACLU invited courts to look at the real-world effects of funding prohibitions on taxpayers and low-income women. Resulting in decisions like Maher v. Roe (1977) and Harris v. McRae (1980), this dialogue reflected broader changes in public attitudes about poverty and the social-safety net.