Chapter 8 examines the core principles of the Court to interpret the right to free and fair elections (Article 3 Protocol 1) and interrogates the long-standing minimalism attached to its substantive and procedural obligations, which is also translated in the wide margin of appreciation when the Court leaves it to the discretion of the governments to ‘mould’ their own model of democracy. A similar restraint in scrutinizing the purpose of interference in the proportionality analysis is observed and reflect the Court’s historical record of protecting only the existential conditions democracy. It lends further support to the argument that the Court’s interpretive equipment proves insufficient in the face of infrastructural erosion.

The notion of truth is a powerful one within transitional justice, and truth-telling and truth-seeking are considered to be a necessary part of any justice pursuit. Also in the US, official government actors are creating truth commissions (or truth commission-like processes) in order to acknowledge and address a wide range of violent and discriminatory contexts, both historical and present-day. This chapter explores two such truth commissions operating at the sub-national level, namely in the states of Maryland and California. Drawing from participatory scholarship, the chapter evaluates these examples and highlights how current and future truth processes can better conceptualise and implement victim participation in order to have deeper engagement and impact with affected communities. Examining these efforts around agency and empowerment can shed light on broader developments around formalised participation, thereby contributing to a better understanding of the second generation of victim engagement in transitional justice practices in the US.

Schemes of arrangement have become the structure of choice for recommended bids in the UK. This chapter examines the reasons for this development and compares the use of these two mechanisms for effecting a change of control, including the level of minority protection that exists in both procedures. The question of whether this use of a scheme of arrangement rather than a traditional offer gives rise to any concerns is addressed. It is suggested that there are no reasons to be sceptical about the use of schemes of arrangement to effect a change of control. Crucially, the Takeover Code in the UK governs changes of control of relevant companies by way of a scheme of arrangement as an alternative to a traditional takeover offer. While the minority protection available to shareholders in a scheme and in an offer are distinct, these differences are explicable when the purpose and function of these different mechanisms are considered. Supervision by the English courts and, where appropriate, the Takeover Panel, operates to provide sufficient safeguards and protections for dissenting and minority shareholders and other parties concerned about the potential impact of the transaction on their rights.

This chapter identifies two vantage points for examining the Court’s account of the rule of law in response to populism, Article 6 (in particular, its ‘tribunal established by law’ and ‘access to a court’ requirements) and Article 18 (bad faith violations). It shows that in the former case the Court makes a sustained effort to bring its principles of independence and impartiality to the fore but equally fails to identify a distinct type of (infrastructural) alteration to democracy and the rule of law. In the latter case, it is argued that (the rise of) Article 18 rescues a deficient proportionality test. It calls for an enhanced test, one that can grasp and respond to infrastructural erosion.

In 2006, the United Nations and the Cambodian government established the Extraordinary Chambers in the Courts of Cambodia (ECCC) within the context of the post-Khmer Rouge Buddhist society, in which concepts such as ‘karma’, ‘reincarnation’, and ‘merit-making’ take root. The institution has been interpreted differently among victims whose views of justice are informed by the pre-existing Buddhist frameworks. Many participating victims sought to use it as a venue to accommodate their own ideas of justice linked with perceived obligations to seek peace for the spirits of their loved ones. Other non-participating victims showed disinterest in or resistance towards the formal processes, seeing them as undermining their ordinary, everyday justice-seeking efforts through Buddhist beliefs. This chapter looks into the (in)compatibility between liberal, retributive justice and Cambodian Buddhist justice through the narratives and lived experiences of both groups of victims, bringing attention to different perspectives on the vernacularisation of foreign justice models.

Between 2015 and 2023 the Law and Justice government significantly altered the composition of the Polish Constitutional Court, the Supreme Court and the National Council of Judiciary. It has also expanded the power of the executive branch in relation to the courts. This process – which the majority of scholars and legal practitioners saw as a period of deterioration of the rule of law – also had a transitional justice dimension. In this chapter, I claim that the decline of Polish liberal constitutionalism was possible because the Law and Justice party managed to create an alternative constitutional vision – a counter-constitution, to borrow the term from Kim Lane Scheppele – the cornerstone of which was the belief in ‘legal impossibilism’. ‘Legal impossiblism’ was often understood to refer to strict constitutional constraints supposedly preventing the parliamentary majority from introducing crucial reforms. The analysis of the Polish constitutional framework demonstrates that, in the transitional justice domain, ‘legal impossibilism’ perceived this way is a myth. However, I argue that the previous government perceived ‘legal impossibilism’ differently: as restraints upon a radical shake-up in political, social and economic hierarchies. For the Law and Justice party, without such a change the democratic transformation remained incomplete.

This chapter explores the transforming constitutional imaginary of the Scandinavian welfare states. Suggesting that the Nordic countries shared a distinctive interpretation of the democratic ideals during the heydays of the social democratic welfare state, the chapter argues that the breakthrough of neoliberalism has fundamentally transformed the Nordic constitutional imaginary. No longer connected to national and popular sovereignty, public participation, labour market arrangements or economic and social equality, Nordic democracy is today increasingly associated with rule of law, individual and human rights, as well as economic freedom. The chapter connects Nordic developments to the recent literature on the constitutional theories in neoliberal thought. Scholars like Samuel Moyn, Quinn Slobodian and Jessica Whyte have amply shown that many leading neoliberals strove to restrict or replace democratic procedures with constitutionally protected market arrangements. In a Nordic context, these ideas were put forward in the debates particularly in the 1980s, but more often than not connected to the processes of globalisation and Europeanisation since the 1990s. As a result, the Nordics ceased to represent a democratic alternative but conformed to the neoliberal mainstream that emerged with the End of History.