During the paradigmatic moment in the 1990s that Hirschl refers to as “juristocracy,” the global institutionalization of neoliberalism effectively untethered economic control from nation-states. States’ capacity to regulate economic flows diminished, as did their ability to fulfill many of the entitlements that were then aspirationally included in progressive constitutions. Peasants, small-scale food producers, and rural workers felt the effects of neoliberalism especially hard as global trade agreements and structural adjustment policies dismantled state support and made them vulnerable to global competition. With states constrained by binding global rules, these groups were forced to rethink existing grammars of social justice. Rather than simply claiming rights, they therefore devised new claims and repertoires of mobilization in the attempt to subordinate global capital flows to popular control. Through the claim of food sovereignty, rural communities formed transnational movements that today mobilize at sub- and supra-national levels with the goal of building decentralized, democratic, and sustainable food systems. This chapter describes how transnational food sovereignty movements have reconceptualized rights around the networked form of transnational governance. Drawing on ethnographic fieldwork in the UN Committee on World Food Security (CFS), one of the key arenas of global food governance, it illustrates how food sovereignty movements creatively mobilize the right to food to institutionalize their own symbols and practices of representation. In doing so, the chapter argues that food sovereignty movements have rearticulated the right to food as a “representative claim” through which they seek to democratize transnational governance.

The late twentieth-century recognition of indigenous peoples as collective subjects of human rights represents a case of “iconic indexicality,” as international human rights instruments held out promises of recognizing difference, repairing colonial harms, and reckoning with the slow violence of genocide. During the first decades of the twenty-first century, indigenous peoples in Guatemala mobilized human rights through legal actions to defend their ancestral territories and ways of being, mirroring similar processes occurring across Latin America. Yet at the same time the intensification of extractive industries deepened processes of capture of state apparatus by corrupt elites and criminal networks, leading to backlash and the stalling or reversal of earlier legal victories. Today indigenous communities and their allies are subject to systematic criminalization and renewed processes of legalized violent dispossession. This chapter argues that the current “juristocratic reckoning” with the promise of indigenous rights must be viewed in the longue durée. Indigenous people have engaged with hegemonic forms of law since conquest, and although these engagements acquired new dimensions and intensity during the twentieth century’s “age of human rights” (Goodale 2022), they were accompanied by a keen awareness of the historical role of law in old and new forms of colonial violence and dispossession. This is because colonial legal orderings of land and territorial resources are always racially constituted. As Nichols (2020), Di Giminiani (2018) and others have shown, the laws of the colonizers remade indigenous worlds by constituting land as an alienable object (“property”), displacing alternative “land ontologies” to justify racialized inequalities grounded in systemic violence. The late twentieth-century turn to law by indigenous peoples never supplanted other horizons of justice premised on alternative lifeworlds; indeed, the juristocratic shift and its centering of “self-determination” served to amplify claims and histories conceived prior to and beyond human rights law. As this chapter shows, through processes of judicialization indigenous lawyers’ collectives in Guatemala have meticulously documented long-run theft of indigenous lands and appealed to less individually centered and proprietary understandings of land to stake decolonial claims to self-determination. Various mechanisms have been deployed; for example, special expert witness reports or different forms of indigenous self-representation in court to amplify alternative ontologies within the public sphere. This strategic, discursive, and affective engagement with the law is just one part of ongoing processes to strengthen autonomous self-governance.

Drawing on an ongoing conflict over hydrocarbon development in a protected area in Southern Bolivia, this chapter explores resource frontiers as key sites of juristocratic reckoning, where international and national discourses of rights are simultaneously invoked and undermined by violent processes of accumulation by dispossession. A leading example of transformative constitutionalism, Bolivia’s 2009 Constitution defined the country as a “Plurinational State” and recognized an array of new rights for Indigenous, originary, and peasant peoples, including in relation to territory and the environment. Yet state dependence on natural gas extraction has produced a widening gap between legal discourse and practice. This chapter asks: What new forms of politics emerge as communities at extractive frontiers reckon with the possibilities and limits of law and rights to confront ongoing processes of environmental dispossession? The arrival of oil companies in the Tariquía Reserve catalyzed a wave of human rights education in remote rural communities, yet a series of failed constitutional challenges have exposed the limits of law and rights as instruments to counter state-led extraction. Rather than turning away from rights, the chapter argues that community activists in Tariquía see themselves as custodians of the 2009 Constitution against the state. Their embodied praxis of territorial defense points to a form of juristocratic politics from below, in which the state’s monopoly on political and legal authority is called into question.

Following NATO’s military intervention and a very wide-ranging UN peacekeeping mission, Kosovo is today the site of the largest civilian mission of the European Union. In the aftermath of the armed conflict of 1998–9 which was fought along ethnic lines and led to mass atrocities and to the destruction of more than half of the available housing stock, the UN set up a quasi-judicial, administrative mechanism to “resolve” property issues, which was called the Kosovo Property Agency (KPA). Staffed predominantly by Kosovo Albanian national legal professionals and a few international jurists, the KPA was entrusted to deal with war-related property claims submitted overwhelmingly by Kosovo Serbs. Relatively powerless and underfunded, the KPA is a paradigmatic example of a contemporary transitional justice mechanism that is understood as a short-term, bridging, technical-legal project rather than a national process of righting past wrongs. Under the increasing neoliberal managerialism of rule of law as a tool of good governance, the KPA was organized as a mass claims procedure. To “streamline” the process and allow for the “quick” and “efficient” resolution of claims, it used data-processing technologies, and decisions were issued in batches of claims of similar legal scenarios. This chapter conceptualizes the work of the KPA as “law-washing” within the post-cold war juristocratic phase of international intervention and international law more generally. The chapter understands juristocracy in a broad sense, as a diffuse and transhistorical moment in which law is used in often fetishistic, instrumental ways to tackle a range of social and political issues previously not conceived as legal issues. Engaging with law’s “dialectics of reckoning” means analytically making sense of moments (that we may choose to call “juristocratic”) of simultaneous hope in law’s potential to propel the currents of social justice and cynicism and disenchantment about law’s incapacity to “solve” issues beyond law (if at all).

The negotiated South African revolution of the 1990s inaugurated a marked shift toward strong constitutionalism: the post-apartheid Constitution comprised an extensive Bill of Rights, including substantial socioeconomic rights and constitutional duties for far-reaching redistributive measures, and established an independent judiciary under the auspices of a new constitutional (rather than, as before, parliamentary) supremacy. This way, South Africa quickly turned into a paradigmatic case of “juristocracy” (Hirschl 2004) and became imbued with an iconic indexicality for the enormous hopes for transformative justice that came to be vested in the law during the post-cold war era. Based on this progressive Constitution, the government immediately embarked upon a massive land reform in order to address persisting racial inequalities regarding access to and control of the land. Aiming at “putting land rights in the right hands under the rule of law,” as the former minister for Agriculture and Land Affairs put it in 2007 in contradistinction to ongoing extralegal land occupations in neighboring Zimbabwe, South African land reform exemplified a profound belief in “transformative constitutionalism” that was advocated as the solution to many of South Africa’s pressing political concerns. However, growing criticisms of the limited impact and slow pace of South African juristocracy in general and of law-based land reform in particular have substantially altered public discourse over the past decade, revealing a more complex and ambiguous dialectics of reckoning to be at play. Transformative constitutionalism is increasingly also portrayed as being part of the problem – or at least as suffering from “a dis/empowerment paradox” (Mnisi Weeks 2022) – that needs to be overcome in order to finally transform South Africa, which remains one of the most unequal societies in the world, in substantive and meaningful ways. This contested development is paradigmatically exemplified in the recent constitutional amendment process, designed to allow for “expropriation without compensation” in order to fast-track South African land reform, as its advocates claim. This chapter charts the contested terrain of this complex dialectic of juristocratic reckoning in order to evaluate the potentials and pitfalls of a continued project of transformative constitutionalism that increasingly has to operate in an era in which South Africa’s moment of iconic indexicality seems to be passing.

Juristocratic reckoning is observable not only “from below.” Collective struggles that employed law animated by the idea that the state should be a vehicle of social justice have provoked a reckoning “from above.” This chapter suggests three dynamics: namely, authoritarian legalism, the dispersion of law, and the tribunalization of law. They reflect differently on the reaction by states and powerful economic actors to what the editors of this volume call “legal apotheosis” but which we would rather refer to as “organic constitutionalism” (Schwöbel 2010). Within these three pathways the chapter observes an active diminishment of the already limited possibilities of law to be mobilized for social justice. In the first modality – the incremental implementation of authoritarian legalism in India – legal measures have been systematically introduced in recent years to “legalize” a dual-law situation long in the making. In a second step, the chapter outlines the dispersion of law in relation to the borders of Europe, where the access to the laws that would nominally regulate these borders (e.g., asylum law) is thwarted by the creation of new legal zones and jurisdictional responsibilities. Third, the chapter observes the tribunalization of law with relation to the regulation of global capitalism, where seemingly egalitarian procedures increase asymmetries and “singularize” injuries. Taken together, the three cases point toward the emergence of a constitutional order that is averse to political conflict being carried out through law. The pathways described in this chapter have hegemonic tendencies; they ensure that political orders are authoritatively institutionalized through law but cannot be contested through it anymore.

This chapter uses two narratives of legalities to capture distinctive profiles of juristocratic reckoning. The first narrative centers on a legality brimming with connotative power. Instead of relying on the direct, instrumental power of human rights, a group of Burmese activists draws upon the capacity of rights to change the way they feel about themselves and generate the momentum to inspire, encourage, and rally others to take up collective political action. Although their country has once more descended into widespread insurrections, some of these activists still carry hope for human rights as they fight back or flee into exile again. The second account is about “governing through contagion,” a legality afflicting state centralization over strategies of control of infectious diseases. The Singaporean state’s strategies to regulate contagion grew out of earlier epidemics and global circulations of capital, violence, and ideas and mutated according to the entanglements of relationships among humans, animals, microorganisms, and technologies. As humans comply with, resist, or otherwise interact with strategies of control, these relationships produce “inter/dysconnectedness” that expose, perhaps exacerbate, existing injustices. Although the two narratives reflect divergent experiences with law, both illustrate a nonlinear worldview, one in which human societies, law, legalities, and thus juristocratic reckonings develop cyclically and chronologically. In one narrative this chapter offers three coexisting perspectives on juristocratic reckoning that transcend the editors’ suggestions; in the other account it shows that a more expansive chronology and cast of actors can shape the way we understand moments of law as juristocratic reckoning. What we make of a moment of law depends on where we look for legalities, where we situate it, and how we appreciate their highs and lows.

Drawing on research conducted in Iran’s criminal justice system, the chapter explores the linkages between mercy in criminal justice and the increasingly global turn away from social justice movements based on logics of human rights and toward care-based appeals, such as humanitarianism. The latter is just one major arena of increased reliance on and appeals to care or “care work” over claims to inherent rights; others include charity, aid, and philanthropy. In Iran’s “victim-centered” criminal justice system, in homicide and other major crimes, the victims’ families possess a right of “exact” retribution. That is, victims’ immediate family members may exercise their right to have a perpetrator executed. In these cases, however, victims’ family members may also forgo retributive sentencing and forgive the perpetrator. A variety of interests – legal, social, religious, and even economic – shape the concerns of victims’ families as they consider whether to exercise the right of retribution by forgoing rather than executing it. While being merciful or seeking mercy may possess qualities associated with a “seasoning” of justice, the inclination toward mercy and merciful grants, such as granting pardons to persons convicted of crimes, is both a legitimation and entrenchment of an absolute sovereign over the judiciary or the legislative branch, as in Iran. As the chapter argues, this normalization of the resort to mercy has the capacity to reduce everyone in society to a potential supplicant with broader implications for the quest for social justice and legal reckoning.

This chapter brings into conversation two powerful, imbricated forces in contemporary Nigeria: the dramatic rise in fundamentalist religious Christian and Islamic formations that place hope and prosperity in the afterlife, and the proliferation of community-based technology projects that offer ordinary victims and survivors the power of data as a way to make sense of past and future violence. The chapter argues that these trends are imbricated both with one another and with the history of colonialism from earlier periods to the contemporary moment. The chapter raises questions about the extent to which this Nigerian case study foreshadows a more global shift away from long established (western) authorities – in particular, the law and the nation-state – and toward futures where more and more people could turn toward a kind of moral and political vigilantism, taking the tools for creating hope and meaning (back) into their own hands.

This chapter expands on a series of recent interventions about the consequences of the unraveling of juristocracy at a more diffuse transnational level: consequences for critical scholarship (both disciplinary and interdisciplinary), for the state of (mostly Euro-American) progressive politics, and for the urgent project to imagine alternatives to rights-based frameworks for change and justice-seeking that guard against the use of violence, ethnocentrism, and other expressions of an exclusionary juristocratic reckoning. The chapter begins by summarizing the well-known intellectual historical narrative of notable developments in the wake of the “endtimes” (Hopgood 2013) of human rights and other categories of law that were invested with the weight of social, political, and, to a lesser extent, economic transformation. After focusing on and tracing the afterlives of existing human rights up to the present, the chapter then introduces an alternative vision for what is described as the “future lives” of human rights, a proposition that recognizes the force of the different critiques underlining the profound turn away from human rights in the present, but which nevertheless seeks to go beyond these critiques. Although the original argument for “reinventing human rights” (Goodale 2022) was meant to examine fairly comprehensively the ways in which a radically reformulated account of human rights was still possible, an account, moreover, that might yet prove capable of galvanizing new and more sustainable forms of translocal social and political action, the 2022 intervention nevertheless left certain key concepts rather underdeveloped. As a response, the chapter returns to these key concepts in order to thicken the presentation of a reinvented human rights as a framework for multiscalar social mobilization and justice-seeking. Yet as the chapter emphasizes, this framework does not return “human rights” to its grounding in law – national, regional, or international. In this sense, the proposition builds on the transformative potential of the turn away from certain kinds of law. As the chapter concludes, the case for detaching human rights – conceptually and institutionally – from law seems as compelling as ever, perhaps even more so in light of the violent impotence of the international system writ large in the face of recent crises such as the global COVID-19 pandemic and Russia’s invasion of Ukraine.

This chapter explores how within certain colonial contexts the use of internationally composed ‘mixed courts’ to guarantee the individual rights of Westerners contributed to the origins of European integration law. It first introduces readers to the origins and characteristics of these mixed courts, which operated between the middle of the nineteenth and the middle of the twentieth centuries, highlighting especially the cases of the Mixed Courts of Egypt and the Mixed Court of Tangier. It then describes the personnel continuities that existed between these courts and post-Second World War European law, both within the European Communities and the Council of Europe. Finally, to further illustrate this point, the chapter will zoom in on one case before the Mixed Court of Tangier that not only raised the question of treaty law as constitutional law, but also elicited a cautious, yet not entirely negative, assessment by Nicola Catalano, who would shortly afterwards become one of the most influential early ‘Euro-lawyers’.

This chapter introduces the book Colonialism and the EU Legal Order. It starts by providing a definition of the meaning of colonialism used in the book and a background account of how the European Union has regulated Member States’ colonies from 1957 until today. This introduction then turns to an examination of three broad themes that emerge across the book’s fifteen individual chapters. First, the ways in which this book establishes colonial continuities in EU law. Second, how present EU law can be understood through colonial history. Third, examples of how colonialism casts new light on the theory and concepts of EU law. Lastly, the structure of the book, which is divided into four parts – Law, Actors, Exits, and Futures – based on the case studies used by the authors to examine connections between colonialism and the EU legal order, is introduced.

With the 1970 Common Wine Policy, the Algerian wine industry, established by France for its own benefit in colonial times, was thrown out of business; and this occurred precisely when Algeria, finally an independent nation, was poised to reap the profits of wine exports. This chapter elaborates on this story in three ways. First, it connects the collapse of Algerian wine exports to the dynamics of the Common Agricultural Policy, outlining the natural rivalry between Mediterranean countries – some in Europe, some beyond its borders – and highlighting unresolved distributional tensions between internal cohesion and external trade policy. Second, the chapter adds theoretical perspective to the wine story. The reorganization of EEC wine markets to the detriment of Algeria was a striking example of colonial wealth diversion. Yet, it also followed a common pattern – one not confined to colonial arrangements – in which the law enables trade agreements between some states, benefiting parties while extracting or diverting wealth from non-parties. Third, the chapter dwells on the enduring significance of the Algerian wine parabola. In hindsight, the excision of Algeria from the Common Market may have been a triumph of short-termism. This time around, Europe might be the one left out.