This concluding chapter reflects on the phenomenon of constitutional intolerance, its many faces, its entanglement in histories of toleration, and its implications for discourses on constitutionalism, illiberalism, and secularisation. It argues that the default lines have shifted from secularisation to fundamental questions about the future of constitutional democracy in Europe, considering the fundamental aspects of constitutional intolerance: the articulation of otherness vis-à-vis the political community and the sanctioning of this othering in public space. The conclusion also considers the rise of “cynical democracy” in the instrumental use of constitutional repertoires to further partisan interests, as well as the right wing tendency towards the overrepresentation of formal-procedural legalism, an attachment of legitimacy to legality, and a weakening of the capacity for normative reflection in the highest courts.

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework chapter defines core concepts, analyzes the relation between national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals, given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power is also exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that could explain such decline, and why such factors appear to be transnationally linked. Part IV discusses what might be done given these shifts in rule-of-law protections. In conclusion, we note the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

This chapter examines how the Council of Europe sought to promote the rule of law in Russia after the collapse of the Soviet Union. Soviet president Mikhail Gorbachev’s ambition to construct a “common European home,” to be pursued in concert with European states and international organizations, was advanced by Russian president Boris Yeltsin and, at least initially, by his successor as president, Vladimir Putin. But after roughly a decade of concrete reforms, that effort foundered, reversed, and then collapsed. Russia descended again into authoritarianism and, shortly after its full-scale invasion of Ukraine, Russia was expelled from the Council of Europe. Thus, this story now has a beginning, a middle, and an end. This chapter explores that story and how the dynamics of Russia’s pursuit and rocky course of membership in the Council of Europe affected both the Russian state and the international organization that sought to admit it to membership.

Virtually all philosophical discussions of the rule of law’s meaning assume that the proper horizon of the concept is the national legal system, or what I call “the rule of law writ small.”  But governments are bound by a web of transnational legal obligations that should also be considered part of the rule of law’s scope. Analyzing whether the rule of law is honored against the backdrop of both national and transnational law gives us “the rule of law writ large.”  This concept has particular force in the context of backsliding (and democracy-restoring) governments when autocrats first pull their governments away from transnational norms before newly elected democrats seek to restore compliance with those norms. While both sorts of governments may change domestic law, and pack political institutions with those who share their values and fire those who get in their way, only the democracy restorers can be said to be honoring the rule of law writ large.

Utilizing the theoretical framework of transnational legal orders (TLOs), this chapter treats two master questions in global governance: What are the limits to the power of the UN Security Council? Can rule-of-law (ROL) norms constrain UNSC powers? First, we outline a research design with emphasis on its documentary and unique internal empirical sources. Second, we sketch an interpretive narrative of UNSC engagement from the early 1990s to the present with ROL in three areas of UNSC action: peacekeeping, sanctions, and force. Third, we offer a new conceptual approach by proposing that ROL in the UNSC manifests itself in three dimensions: discourse, procedure (or rules), and structures. These dimensions come into play both internally, within the UNSC itself, and externally, in ROL institution-building in and between states, as well as in post-conflict zones, with a rather gray area between (e.g., when the UN peacekeeping missions are themselves subject to ROL oversight for the behavior of their personnel). Fourth, we examine the emergence of micro-TLOs under construction within the UNSC itself. We conclude with reflections on the potential for empowering elected members of the UNSC and weaker states in the UN to press ROL norms on the UNSC as a springboard for ROL global governance via the UNSC.

The rule of law is considered an essential element to guarantee the development of modern societies. Despite this and the democratizing waves that emerged after the Cold War, in recent years the world seems to have entered a stage of institutional stagnation, democratic erosion, and, more broadly, a rule-of-law backsliding at the transnational level. In this chapter, we present evidence of the deterioration of the rule of law at the transnational level and on how this phenomenon has come about. To do so, we use data from the WJP Rule of Law Index produced by the World Justice Project covering more than 100 countries for the period 2015 to 2022. We find that the rule of law has deteriorated in recent years around the world. This trend, however, masks variation in different indicators. Using cluster analysis of the change over time in the main indicators of the Index, we identify three groups of countries. The first is composed of countries that have experienced a deterioration in all indicators, but most notably in those measuring limits to state power, open government, and respect for human rights. The second group is composed of countries where overall rule-of-law trends have declined slightly. These countries have also experienced considerable decline in the indicators measuring limits to state power and respect for human rights, albeit of lesser magnitude. The third group is composed of countries where most indicators show slight improvements. These results suggest that the deterioration in the rule of law has been driven by the weakening of limits to state power. In contrast, except in those cases that have experienced a sharp decline, the weakening of the rule of law has not been driven by an acute deterioration in the application or enforcement of the law or in access to justice. We also find that the weakening of the rule of law appears to be associated, in part, with an increase in the authoritarian tendencies of already authoritarian regimes and, in part, with the rise of anti-pluralist and populist leaders.

A dozen years ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the international rule of law. His conclusion follows from his assertions that the purpose of the rule of law is to protect individual liberty, and the purpose of international law is to protect individuals. This chapter critically responds to his position. International law is based on the notion that states are autonomous and equal members of the international society ordered through legal relations. The legal relations of the international community of states, I argue, constitute the horizontal dimension of the rule of law, which Waldron overlooked. Focusing on horizontal rule-of-law functions, I provide descriptive, theoretical, and normative reasons why states are, and should be, entitled to the benefits of the rule of law. In the course of this critical engagement with Waldron’s position, I lay out a broad understanding of the rule of law that applies within states and the international community.

This chapter reflects upon findings of this book, from the perspective of two central distinguishing themes. First, it endorses and explores the implications of understanding the rule of law in terms of a central aspiration or goal – reduction of the possibilities of arbitrary exercise of power – rather than any purported checklist of legal instruments said to embody it. Second, it discusses the distinctive implications of examining the rule of law in a transnational, not merely national, context. Part III examines the geopolitical sources of transnational enthusiasms for the rule of law, and the implications of geopolitical changes that might lead to the exhaustion or extinction of such enthusiasms. Finally, the chapter suggests that optimists might curb their constructivist enthusiasms, and pessimists acknowledge that speed bumps are not necessarily the end of the road, if both reflect on how long securing the rule of law might be expected to take.

After a moment that was characterized by a flurry of constitutional reforms and elections, coups have returned in some states in Western, Central, and Sahel regions in Africa. The rule of law and democratic governance have come under significant stress. A confluence of events – colonial legacies, uprisings, regional conflicts, term elongation, challenges to the dynastic style of leadership, and the rising incidence of coups – challenge the entrenchment of the rule of law in contemporary Africa. Focusing on the period between 2020 and 2023, the chapter asks: Against the background of recent coups, how should we analyze the rule of law in contemporary Africa? Is the decline of the rule of law and democratic governance in sub-Saharan Africa as a region overstated, given that the coups are concentrated in Francophone West and the Central Africa? How should we think of the role of geopolitical contestations and colonial linkages in unsettling democratic regimes and eroding the rule of law in Africa?

International organizations have issued recommendations and prescriptions on constitution-making and reform, especially since 1989. However, such constitution-shaping activities by European and universal organizations, notably the UN, have for the most part not led to a better operation of the rule of law on the ground. Besides these problems of effectiveness, normative concerns against constitutional assistance and advice by international organizations have been raised. It is suggested that, in order to become more legitimate (which might then also improve effectiveness), constitution-shaping by international organizations needs to absorb postcolonial concerns. This includes respect for local rule-of-law cultures flowing from non-European constitutional thought and the inclusion of a much deeper social agenda with a global ambition. Thus revamped, international organizations’ constitution-shaping role could be reinvigorated so as to sustain the rule of law on the domestic level, thereby contributing to transnational ordering and global constitutionalism.

Under Recep Tayyip Erdoğan’s rule, Turkey has become an autocratic regime. The Turkish case raises questions about how international organizations tasked with upholding the rule of law can not only permit illiberal states to violate rule-of-law norms but also themselves undermine those principles. Conceptually, the rule-of-law/rule-by-law spectrum fails to account for authoritarian contexts. If the rule of law constitutes one end of the analytical spectrum, the other end is lawless rule, not rule by law, and the dual state lies somewhere in between. This chapter analyzes the case law of the European Court of Human Rights (ECtHR) concerning Erdoğan’s resort to the law to consolidate his power (rule by law) and his utter disregard of legal rules in repressing democratic dissent and engaging in state violence (lawlessness). The analysis goes beyond ECtHR judgments to examine inadmissibility decisions and strike-out rulings.

In this chapter, Ezrahi argues that the massive discrediting of claims of objectivity has deeply weakened the social authority of professional communities and institutions – governments, scientists, and economists – which have heavily resorted to professionalism in order to seemingly depoliticize decisions and empower their legitimacy. The dual role of objectivity norms and objectification strategies in depoliticizing decisions while concealing value-political choices is scrutinized. The delicate balance between overpoliticization and over-objectification is examined, emphasizing the challenges faced by governments in navigating transparency and political functionality. The chapter traces the interconnected erosion of the transcendental concept of Nature, democratic culture, and the rule of law. The loss of objectivity in law, exemplified by challenges to the Israeli Supreme Court, underscores the broader decline in civic solidarity. The chapter concludes with an exploration of the cultural and epistemological crises facing modern democracy, raising critical questions about resources available for shaping new imaginaries of self-governance and justice, drawing on historical cosmological transformations.

This chapter examines transnational efforts to uphold the rule of law by regional courts and organizations.  While not originally the primary focus of regional trade regimes and human rights systems in Africa, Latin America, and Europe, these institutions have now taken on a thicker set of obligations toward protecting the rule of law (along with democracy and other related concepts).  The result is that supranational and international organizations have become important actors confronting real-world threats to the rule of law. The chapter compares developments in Europe, Africa, and Latin America.

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

The rule of law, an abstract concept heavily debated among legal scholars and social scientists, has in the past few decades acquired a nearly universal appeal, as democracies, autocracies, and oligarchies all claim to uphold it. Repeatedly, Xi and the leaders of the Chinese Communist Party (CCP) have pledged to build a “rule-of-law country.” But when the ruling elites of a one-party authoritarian state allege commitment to the rule of law, what do they really mean? How is it different from the Western concepts of the rule of law, especially the “thick” version of it that has been closely tied to liberal democratic values? What are the key features of the “rule of law with Chinese characteristics”? And how will it impact the international legal order? Applying a transnational legal ordering framework, this chapter attempts some answers. It traces the development of the Chinese legal system and the evolving rule-of-law debates in China and then explores how China might impact the international legal order.

This chapter provides a legal explanation for the different homeowners’ association (“HoA”) rates in Shanghai (94 percent), Shenzhen (41 percent), and Beijing (12 percent). Despite China being a unified regime with national law that is supposed to apply across different parts of the country, the local rules applicable to HoA elections differ across the three cities. Beijing has consistently followed national law, whereas Shenzhen adopted its own legislative rules until the passage of the Civil Code in 2020, at which time local rules gave way to national law, and Shanghai has left the choice to individual neighborhoods, with its courts relying on the idea of autonomy in private law to justify local practices that contradict national law. Both the national rule adopted in Beijing and the city rule adopted in Shenzhen have imposed significant decision-making costs on the establishment of HoAs, as well as collective governance problems ranging from parking space allocation to building maintenance. By contrast, the Shanghai approach, that is, allowing homeowners to write their own voting rules into HoA constitutions to reduce decision-making costs and using the courts to safeguard procedures and minority interests, contributes to functioning neighborhood democracy in Shanghai.

This edited volume arises from an important, even revolutionary, insight: both legal institutions and law itself are products of deliberate design decisions. By critiquing law’s design, legal designers open up the possibility of alternative approaches to problem-solving for individuals and communities. One strength of legal design as it stands today is its breadth, with relevance to every interaction with law and legal institutions. Legal design crosses boundaries of all sorts, from the international to the hyper-local, constitutional to regulatory law, and litigation to drafting. It even offers opportunities to envision entirely new models for mediating between individuals and society that do not rely on existing conceptions of the rule of law. The contributors to this pathbreaking, agenda-setting volume are the dreamers and doers of the legal design movement. Welcome to the revolution!

This chapter posits that the emerging methods, perspectives, and goals of legal design fit squarely within the history of law. It offers a quick sketch of the history of the development of the rule of law over the last 4,000 years, which sets the stage for an examination of that history as a design history – humanity’s collective work over four millennia of ideating, prototyping, testing, and refining the systems of rules we use to live collectively. It then makes a few points about the benefits of design as design – its relative speed, flexibility, and responsiveness to making things that are useful to people. It will then introduce the concept of “longtermerism,” which refers to a concept or ideology that emphasizes the importance of long-term thinking and decision-making in various aspects of life. The chapter wraps things up with a note of urgency and optimism based on the argument that no human should be denied the benefit of the rule of law.