Chapter 3 further refines the criteria for when failure-based arguments might be justified. Drawing insights from the early UN Human Rights Commission’s focus on addressing specific rights violations, along with literature on structural reform litigation and emergencies in public law, the chapter underscores the importance of proportionality. This involves weighing the necessity, functionality, and potential costs of interventions. The chapter concludes with a contemporary example — the Horizon scandal and the UK Parliament’s legislative response overturning wrongful convictions of subpostmasters—illustrating how this reasoning works in practice.

Chapter 4 engages with one of the core examples for failure arguments in practice, i.e. the development of structural reform litigation. It traces the development and application of structural reform litigation across various jurisdictions, including the United States, South Africa, India and Colombia. After an overview of the development of public law litigation in the United States in the Civil Rights Era, it turns to consider similar developments in the three Global South jurisdictions. The chapter shows how courts in all of these systems have invoked governmental failure to justify both innovative judicial procedures and expansive remedies in cases involving systemic rights violations. It explores the dynamic role of the judiciary in addressing governance breakdowns. Some courts have focused primarily on ensuring compliance with past judgments, while others have assumed a broader role in response to political malfunction, sometimes even in a quasi-populist manner.

Chapter 7 transitions to the use of failure arguments in international law, examining how they have been used to justify expanding the authority of international bodies. It begins with an analysis of the UN’s Uniting for Peace Resolution and examines the role of failure arguments in the 1990s discourse on state failure and development cooperation. This chapter highlights the challenges of invoking arguments from failure within an international framework, where constitutional principles like separation of powers are less clearly defined. Drawing on Part I, the chapter emphasizes that failure arguments suppose a quasi-constitutional context including expectations of mutual support and cooperation. This only rarely exists in international settings, with the United Nations being one of the exceptions in this regard. The chapter also points to the need to consider political power structures when dealing with arguments from failure, noting the neo-colonial undertones of such arguments in some cases.

This concluding chapter synthesizes the book’s findings and addresses broader trends such as declining trust in state institutions, governance crises, and the expanding role of constitutional law and judicial review. These trends not only elevate expectations of courts to address systemic issues but also increase calls for legal flexibility in the interest of bringing about certain outputs, including through arguments based on failure. The chapter cautions against the potential slide into authoritarianism that such flexibility could enable, emphasizing the need for careful and restrained application of these arguments in public law. It ends by highlighting the need for more North-South comparison and exchange to help address those challenges.

This chapter imposes the structure of a walking tour of Berlin’s memorial art onto the text, continuing to stage moments of individual viewing of art. My argument about the material practices of taking responsibility for restitution is turned into a grounded methodology: a shoe-on-the-footpath mode of writing. Beginning in Bebelplatz, I visit recent responses to the past as they are represented in memorial art in different areas of Berlin, including the national Memorial for the Murdered Jews of Europe. I visit Schöneberg where the Places of Remembrance memorial consists of signs of law from the NS regime mounted in the streetscape. I also analyse Gunter Demnig’s Stumbling-stones, which are small memorial stones set into the footpath. This chapter is a plaidoyer for paying attention to the way we craft and take responsibility for our legal landscapes through our conduct – our movement and posture – resulting from our interaction with the street and its objects.

This chapter shifts the focus to the European Union, where effectiveness-driven arguments, including some based on failure, have been pivotal in promoting regional integration. The chapter discusses both early landmark decisions of the European Court of Justice and the role of political failure arguments in driving the Court’s expansive approach and the concept of systemic deficits in European Union law, as well as the Solange jurisprudence of the German Constitutional Court. It positions these doctrines within the functionalist interpretive framework of European Union Law. While not all of these examples strictly involve failure-based reasoning, they illustrate both the opportunities and risks of the functionalist approach to legal interpretation long dominant in EU law.

Chapter 1 begins by exploring the historical and philosophical grounds for justifying institutional intervention in cases of governance failures. It examines how liberal democracies typically grapple with government failures, and argues that existing tools and mechanisms come with some limitations, making a prima facie case for allowing interventions in some cases of failure. The chapter then distinguishes arguments from failure from arguments about implied powers or emergency measures. Each of these arguments shares important features with arguments from failure, but they are not the same. Arguments from failure should therefore be considered as a concept of public law of their own. This raises the question of when and under what conditions such arguments might be legitimate as a matter of comparative constitutional theory.

Building on Chapter 1, Chapter 2 delves into the normative dimensions of arguments from failure. It asks when these arguments can be justified in constitutional democracies in light of key principles such as the rule of law, the separation of powers, democracy and, sometimes, federalism. The chapter shows that while arguments from failure often clash with such principles at first glance, a deeper dive into constitutional theory reveals room for exceptions. In particular recent scholarship on the separation of powers and democratic experimentalism provides resources to defend what would otherwise be illegal interventions in some cases of failure. Yet at least some of this literature risks opening up these exceptions too broadly. In light of this, the chapter argues that arguments from failure should be treated as an important public law doctrine but remain ’safe, legal and rare’, and formulates conditions for interventions in cases of failure to be legitimate.

Building on the previous two chapters, Chapter 5 sets out a normative framework for assessing the appropriateness and scope of structural reform litigation and structural remedies in particular. Drawing on political process theory, the chapter suggests that structural reform litigation should address political malfunctions only when other democratic means have proven insufficient. It also emphasizes the need for a case-by-case approach requiring judges to consider the functionality, necessity and costs of intervention (proportionality). The chapter identifies the quantity and persistence of rights violations as central factors for determining the need for judicial intervention, with quality and intent providing additional guidance, and offers criteria to distinguish cases of institutional failure from those of (legitimate) disagreement. This chapter serves as a guide for legal practitioners and scholars, advocating for judicial restraint while acknowledging the judiciary’s crucial role in safeguarding democracy amid persistent governance failures.