Generality and Abusive Constitutionalism

Ofra Bloch

Constitutional amendments that target opposition members, benefit powerful political figures, or entrench caste-like group hierarchies have become increasingly common in contexts of democratic decline. These cases may appear disparate, but this Article argues that they share a common denominator: a violation of the principle of generality—a core rule-of-law requirement that like cases be treated alike according to pre-established rules. While the legalistic techniques used to erode democracy have been explored extensively, this Article shifts the focus from the how to the what, identifying the violation of generality as a central problem with many of these amendments, and providing a framework to examine them.

The Article makes three distinct contributions. First, drawing primarily on Lon Fuller’s jurisprudence, this Article offers a conception of generality as fundamental to what law is: a distinctive mode of ordering that inherently limits state power. Second, it argues that generality, so understood, is not only foundational to the rule of law, but even more so to constitutionalism. Third, building on this theoretical framework, the Article examines a range of case studies from different jurisdictions, demonstrating how constitutional amendments enacted by authoritarian or aspiring authoritarian regimes often violate generality—and critically analyzes how courts have responded.