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73 Am. J. Compar. L. 1 (2025)

handle is hein.journals/amcomp73 and id is 1 raw text is: TOM GERALD DALY* Constitutional Repair: A Comparative Theoryt We are increasingly confronted by a pressing question: how can a constitutional democracy be repaired after being deeply degraded, but not ended, during a period of antidemocratic government? This study responds to the transnational challenge of constitutional re- pair by elaborating a novel syncretic theory of repair. Integrating di- verse theoretical frameworks and comparative case-study analysis, the Article pursues four normative arguments: (i) assessing constitutional damage requires a methodological design alive to conceptual clarity, context, core damage, and disciplinary and perspectival limits; (ii) con- stitutional repair is best understood as a distinct paradigm of consti- tutional transition separate from both major constitutional change in stable democracies and democratic transitions from authoritarianism; (iii) onerous and risky processes of formal constitutional change should be approached with extreme caution if sub-constitutional fixes are suf- ficient to achieve initial repair; and (iv) reparative measures departing t https://doi.org/10.1093/ajcl/avaf005 * Professor, Melbourne Law School, University of Melbourne, Melbourne, Victoria, Australia; Director, Demoptimism, www.demoptimism.org. The author is in- debted to a range of institutions and scholars who have facilitated discussion of suc- cessive drafts and who have provided highly valuable feedback. Special thanks are owed to Marcin Szwed, Anna W6jcik, Wojciech Sadurski, Eneida Desiree Salgado, Juliano Zaiden, Kevin Yam, and Will Partlett, and to the participants at four events: the Stanford Rule of Law Roundtable for the launch of the Neukom Center for the Rule of Law at Stanford University on May 25, 2023, including Kim Lane Scheppele, Mila Versteeg, Adam Chilton, Stephen Gardbaum, and Rosalind Dixon; the event Democratic Backsliding: Lessons Learned for Designing Democracy organized by the International Institute for Democracy and Electoral Assistance (IDEA) in Washington, D.C., June 5-6,2023, including Tom Ginsburg, Samuel Issacharoff, Miriam Seifter, Vicki Jackson, and David Landau; the Comparative Constitutional Roundtable at Academia Sinica, Taipei, on May 27 and 28, 2024, especially Oran Doyle, Aileen Kavanagh, and Ugljesa Grusic; and the event A Playbook for Rebuilding the Rule of Law at the University of Freiburg on June 20-21, 2024, including Paulina Starski, Johannes Vbhler, Johannes Masing, and Miroslaw Wyrzykowski. I am also thankful to Emerson Gabardo, Eneida Salgado, and Caroline Bittencourt for hosting multiple talks on repair in Brazil in November 2023, and to the Centre for Comparative Constitutional Studies at Melbourne Law School for hosting two seminars on this study. Finally, sincere thanks are also owed to Rajesh Varghese for excellent copy editing, and to the Academic Research Service at Melbourne Law School for their valuable support. © The Author(s) [2025]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For commercial re-use, please contact re- prints@oup.com for reprints and translation rights for reprints. All other permissions can be obtained through our RightsLink service via the Permissions link on the article page on our site-for further information please contact journals.permissions@oup.com.