Chapter 6 examines scenarios in which courts use arguments from failure to override otherwise existing reasons for judicial deference. It illustrates the close connection in judicial practice between legal innovation and arguments from failure. It shows how the framework set out in the previous chapter provides guidance here too, albeit with some adjustments, given that – unlike in the case of structural reform litigation – failure here serves as an argument that a rights violation has taken place at all, rather than justifying a specific response to one. The chapter points to some resources for grappling with this difficulty. It concludes with a brief case study of the role of failure arguments in important climate change judgments in Pakistan, the Netherlands and Germany.

The introduction sets out arguments from failure as a distinct idea and concept of public law. It shows how such arguments serve to justify institutional interventions that go beyond standard legal norms on the basis of the failure of other institutions. We encounter such arguments in a wide range of legal systems, both in national and international contexts, and in new and fragile as well as in established democracies. The introduction further contextualizes arguments from failure as both a response to crises and a catalyst for institutional innovation, highlighting the tensions between democratic integrity, legal accountability and the need for flexibility. It frames the book’s central argument – that while failure-based interventions can enhance governance, they also risk undermining core democratic principles and the rule of law if applied indiscriminately.

The material practices of responsibility through visual art are demonstrated in this chapter, focusing on Anselm Kiefer and Gerhard Richter. As a mode of taking responsibility for restitution through practice, I analyse the way two of their art works resist or collaborate with their processes of creation and places of viewing. Interleaving my research interludes to Munich into the text, I contend that beholding an Anselm Kiefer sculpture (Sternenfall) in MONA in Tasmania in Australia opens up the artwork to a reassessment of what it might mean to take responsibility for restitution in Australia. I argue that beholding a copy of a Gerhard Richter painting (Birkenau) in the Reichstag in Berlin means taking responsibility for restitution is staged on the threshold to the German Parliament.

In this chapter, a new Lockean argument for intellectual property rights is offered, emphasizing self-defense, self-preservation, and the moral significance of investment. It is argued that creators and inventors have defensible claims to the values and income streams derived from their intellectual efforts, akin to their rights to protect their physical capacities and powers. These claims are grounded in two arguments: (1) the right to defend created values against unjustified interference, supported by Lockean principles of self-preservation and respect for persons; and (2) the moral asymmetry between creators, who invest time, labor, and resources, and copiers, who do not. Addressing challenges such as the non-rivalrous nature of intellectual works and the balance of societal needs, it is argued that intellectual property rights are morally justified to protect the autonomy and livelihoods of creators.

In this chapter, a Millian justification of intellectual property rights is offered and defended. First, it is argued that a plausible form of utilitarianism endorses flourishing theory and indirect utilitarianism. The flourishing theorist argues that moral value includes pleasure and pain but also liberty, security, privacy, freedom of thought, and the like. The indirect utilitarian is willing to follow strategic rules even in cases where it looks like breaking a rule would get the best consequences. The notion of fallibility is essential to this account of moral obligations. Given that humans are fallible and that the rules we consider are typically tested over decades and in numerous contexts, it is generally the case that we are more certain of our rules than we are of our utility calculating abilities in any given instance. We could call these strategic rules rights, and this will include intellectual property rights.

In the concluding chapter, the intersections of privacy, personality, and intangible property are explored. It is argued that there should be expanded moral and legal protections over personal information and personality traits in the context of emerging AI technologies. Drawing parallels with intellectual property rights, it is argued that individuals should retain control over their personal data and the “look and feel” of their personalities, even after sharing or exposure. Privacy as a control-based right foundational to autonomy and well-being is defended, linking its erosion to aggression, stress, and social harm. Legal frameworks such as privacy torts and rights of publicity are analyzed for their relevance in protecting against AI-driven copying and misrepresentation. Highlighting principles of substantial and confusing similarity from copyright and trademark law, the chapter critiques AI’s potential to undermine individual sovereignty, misappropriate creative effort, and stifle innovation. It concludes that robust protections for privacy and personality are essential for maintaining dignity, integrity, and equitable innovation in the AI age.

Chapter 4 delves deeper into the discussion around the torturous suffering inflicted in the name of the state and how that is legitimated. This chapter continues to find states to exhibit an existential interest in keeping the legality of some forms of suffering ambiguous and thus deniable (and non-justiciable to the extent possible), given the degree to which state authorities rely on them. Certain methods (solitary confinement, coercive interrogation and life imprisonment) have come to be bracketed away from the prohibition. This evokes the (often effaced) question of the formation of legality and legitimacy of state violence and brings into focus legal concepts, such as ‘lawful sanctions’, ‘minimum severity’, ‘inherent or incidental’, ‘discomfort’, ‘special stigma’, ‘triviality’ and ‘necessity’. These stand to be critiqued as being born out of political imperatives to exceptionalise so as to invisibilise and render deniable certain state practices. These categories, as will be argued, have worked to preserve the category of torture as aberrational and nearly unattainable.

The substantive discussion begun in Chapter 2, particularly on interpretation, is continued in Chapter 3 through the prism of progress. Collective understandings of state violence, including torture, are understood to have changed over time, with what was historically conceived as permissible coming to be condemned as reprehensible. Changing understandings of pain and punishment, it is argued, are sociopolitically contingent, with legal assessments of torture too beholden to this broader context. On this register, the chapter charts the broader contours of the central shifts in prevailing social and scientific views, values and knowledge, as channelled or challenged through judges and taken to constitute torture’s sociality. This has culminated, it is argued, in a script of ‘progress’ driving the anti-torture field.

The book concludes with a chapter which summarises as to consolidate proposals for reorienting the field in practice and research. It calls on readers to rethink and reflect towards accepting responsibility for the failings of dominant approaches. It points in new directions for more reflexive law and torture practice and research.

Critics of intellectual property argue that: 1) the non-rivalrous nature of intellectual works grounds a prima facie case against rights to restrict access. Since intellectual works are not typically consumed by their use and can be used by many individuals concurrently (making a copy does not deprive anyone of their possessions), we have a strong case against moral and legal intellectual property rights; 2) promoting intellectual property rights is inconsistent with our commitment to freedom of thought and speech. Closely associated with this argument is the position that individuals have a right to knowledge, and intellectual property institutions interfere with this basic right; 3) information is a social product, and enforcing access restrictions unduly benefits authors and inventors. Allowing rights to intellectual works would be similar to granting ownership to the individual who placed the last brick in a public works dam; and 4) intellectual property rights sweep across the entire domain of human action, restricting individual liberty even in the privacy of one’s home. These arguments are presented, analyzed, and found to be unconvincing.