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This chapter explores a set of modalities of democratic failure in response to Aziz Huq’s analysis of failure. Not all of the disappointments produced by democratic decision-making should be construed as failures, and we should distinguish between “intransitive” and “transitive” failing, i.e., between “failed democracy” and a community’s “failing democracy.” Although democratic institutions and constitutional practices may be deformed, democratic failure may also derive from participants’ unwillingness to hold other agents accountable for defying democratic norms and values.

This chapter pays attention to the Austrian Constitutional Court. This court-constitutional adjudication is characterized by a single institution, which in its competences and organizational structure is essentially unchanged compared to the Constitutional Court that was established in 1920. In order to understand today’s constitutional adjudication, the chapter discusses its historical beginnings immediately after the end of the monarchy. It also reveals that, in the European comparison, the Austrian Constitutional Court is of great importance in national constitutional practice. It owes this essentially to its power to review and strike down statutes. Until very recently, the Constitutional Court had no authority in disputes between different organs of the state. Only since the beginning of 2015 has it been responsible for ruling on disputes between organs of the Nationalrat and organs required to provide information.

This chapter examines the governmental process lessons that can be learned from the Hutton and Butler Reports. Though the Hutton and Butler inquiries were directly concerned with aspects of the Iraq saga, they had interest and significance reaching beyond the Iraq issue. This chapter explains that the inquiries prompted questions about the place of such investigations in British constitutional practice and that the unfettered access to information given to the investigators yielded an extraordinarily close and revealing portrait of how contemporary government at the centre of the British system has been functioning.

This chapter reviews the use and abuse of principles in the Brazilian constitutional doctrine and practice. First, the problem of doctrinal fascination will be addressed, pointing out theoretical and jurisprudential mistakes. The misguiding and acritical reception of the theory of principles in Brazil is questioned considering leading Brazilian constitutional scholars who transplant foreign theoretical models without taking seriously the Brazilian legal order and its social context. Second, the book makes some critical comments on confused constitutional practices related to principles, considering some cases judged by the Brazilian Federal Supreme Court. A historical constitutional case and some recent constitutional cases are analysed considering the disparate application of balancing and proportionality.

Religious freedom as understood in Indian constitutional practice is explicitly defined in terms of the power that the state will exercise over religion. In itself this is not an exceptional exercise of state power even in secular liberal democracies, as it is the state that ultimately draws and polices the line between religion and the state. However, in the Indian case it will be argued that defining religious freedom through essential practices violates social intuitions about religiosity and religious pluralism even as it might be motivated by entirely legitimate aims, such as upending practices like untouchability. Making explicit this hypothesis, the chapter will also argue that “essential practice” plays an important role in structuring India’s constitutional compact and makes unavailable many of the structures of everyday life that make pluralism viable.

Since 1993, there has been a rapidly growing public debate about the accountability of regulators of privatized companies, or public utilities. These debates have been mainly conducted with the aim of advancing policy positions in the hope that they might by adopted by government. This chapter tries to set these arguments within a wider context of debates about the control of discretion and the allocation of authority which reflect underlying arguments about the constitutional law and practice of Britain. It is argued that the difficulties with accountability of the regulators can only be solved, or put on a sounder footing, in the context of wide changes to constitutional structures and practices.