When the constitutional bargain process is non-inclusive and nonparticipatory, and when civil society fails to operate as a democratizing force, the constitutional outcome is not likely to resolve the political and societal ills of authoritarianism. Chapter 6 addressed several of these constitutional design issues. It first examines cases where constitutions failed to limit the arbitrary powers of the monarchs (Morocco and Jordan) or presidents (Egypt and Algeria) by utilizing a constitutional design that lacked textual clarity, adopting contradictory provisions, and creating parallel institutions. Next, the chapter examines “non-consensual” constitutional designs in deeply divided societies. First, in countries where an ethnoreligious minority ruled against the majority’s will (Bahrain and Syria), new constitutions failed to institutionalize power-sharing. Second, where regional cleavages, rivalries, and grievances were prominent issues, as in Yemen and Libya, federalist and region-based power-sharing constitutional arrangements failed to prevent conflict. Lastly, where a country was deeply divided across ideological and identity lines (as was Egypt in 2012), winner-take-all approach to constitutional drafting alienated half of the population, leading to the failure of the constitution and the democratic transitional process.

Illiberal democracy is a special constitutional arrangement: it is a plebiscitarian democracy unfolding the totalitarian potential within a democratic system. As a centralized power, it intends to perpetuate the rulers’ monopoly over the state, relying on the falsification of classical (liberal) constitutionalism. These features offer sufficient family resemblance to treat them together for the purposes of constitutional theory. Illiberal democracy takes an instrumental attitude to constitutional institutions. Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy without extremely cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core, is missing. There is no commitment to underlying principles; appearances matter, not authenticity. Hence the inevitable duplicity and deceit in the constitutional and legal system of illiberal democracy. The constitution is not an entrenched, higher order law but a practical tool to solve emerging conflicts in an illiberal and nondemocratic way (imposing arbitrary will as supreme command).