This chapter explores the processes and form of the imagined national community in Rwanda in light of global discourses of difference, focusing on the space of identity that the state narrative of unity allows for Twa to navigate their subjectivisation as Rwandans. Our data shows that many Twa buy into the government’s narratives of national unity and ‘Rwandan-ness’. They choose to identify themselves as Rwandan and appear willing to forgo Twa identity for the promise of belonging and progress that they understand national narratives of unity to offer. To understand this as forced assimilation – whether through the violence of law or economic circumstances – is too simple a reading: Twa individuals are actively using the ‘Ndi Umunyarwanda’ programme messaging to create spaces of inclusion for themselves within Rwandan society.

The chapter argues that courts in hybrid regimes face a legitimacy paradox: an activist court risks attracting backlash from the authoritarian, whereas a deferential court may undermine the trust of a democracy-supporting population. The chapter first lays out the conventional view of perceived legitimacy, including the mechanisms behind it and its utility. The conventional view is premised upon the political dynamics of a democracy; this requires modification in order to be applicable to a hybrid regime. It then takes on this task by introducing a relational angle. An audience-based framework is shown to help us identify the key audiences that are relevant to judicial legitimacy in different regime-types. The audience-based framework is then applied to a hybrid regime to set out the legitimacy paradox. The effects of the paradox are practical, as exemplified by the tensions between the expectations different political actors within a hybrid regime have of a constitutional court. It will be explained how these conflicting expectations create challenges for judicial maneuvering in a hybrid regime.

So what should we seek in order to avoid or at least reliably reduce the availability of such arbitrary exercise of power? The commonest forms of answer – limiting, constraining, curbing – cast the role of the rule of law as defensive and negative, often exclusively so. These terms typically miss the positive, often constitutive, and anyway indispensable role of power in social affairs and in what we should hope for if the rule of law is to attain its proper ends. I recall the term ‘tempering’ as long used, but largely forgotten, to express the ambitions of those pursuing values then and long since associated with the rule of law. In part a description, in part metaphor, the idea of ‘tempering’ gives more food to thought and possibility than the defensive, diminishing terms in common use. I demonstrate that in its various uses – personal, institutional, metallurgical – the term evokes a salutary combination of balance, thoughtfulness, moderation, and strength appropriate to the rule of law ideal.

The BRI, formally known as the One Belt, One Road Initiative, is a global development initiative initiated by the Chinese government arousing significant academic and policy interest. Since 2005, China has completed close to USD2.3 trillion in foreign projects since with 41% (USD966 billion) financing infrastructure projects and an even larger amount (USD1.4 trillion) towards investment in foreign assets – port facilities, mining and energy assets, and acquisitions of foreign firms. This chapter reviews the role of the BRI in infrastructure development including its contributions and challenges in advancing sustainable development alongside efforts at engagement with local communities. A number of approaches to addressing BRI disputes have emerged at the pre- and post-dispute stage. These include both formal and informal dispute mitigation and resolution mechanisms. Conversations with project coordinators highlight the importance of neutrality and relationship preservation. Systems are emerging to increase community access to grievance mechanisms including China’s mediation and consultation mechanism for the mining industry.

This chapter examines the human rights framing for the governance of information from the 1990s to the early 2010s and argues that, overall, it did not fundamentally unsettle two basic logics of neoliberalism, namely, securitization and marketization. In commonplace positive narratives about technology, human rights were presented by policymakers and international technocrats as one benefit of new information and telecommunication technologies (ICTs), to justify the market-driven technological change. By contrast, negative narratives about technology focused on the social harms of new ICTs and invoked human rights to normatively ground technological development. However, human rights struggles in this period suffered from two processes of dilution – firstly, the proceduralization of human rights obligations of the state during the War on Terror years and, secondly, the narrowing down of a broad social programme into focusing only on classic civil and political rights in civil society campaigns – and were therefore unable to fundamentally reshape the governance of information towards more equitable distribution of power and wealth.

This chapter presents conclusions and relevant recommendations. Project data, survey findings and comparative case studies suggested that the introduction of heightened pre-project community consultation and grievance mechanisms within global multilateral development banks in the mid 2010–2020s have corresponded with a drop in the percentage of grievances per project from 15.4% in 2019 to 7.1% in 2021. Survey findings of fifty-five practitioners engaged in infrastructure-related dispute prevention in the Asia Pacific region likewise found that prior community consultation was considered the most effective approach to preventing infrastructure disputes. Overall, most disputes arose because of lack of adequate consultation with members of the community. Similarly, the twelve community–investor dispute case studies showed that in circumstances of increasingly heightened standards for pre-project community consultation compared with ad-hoc discretionary consultation practices, the number of stalled/cancelled and litigated case declined by 33%, the percentages of cases referred to local courts declined by 16%, and the number of cases pursuing party agreement through mediation or negotiation increased by 50%. These findings support the development of increasingly robust community consultative engagement channels, particularly for multilateral and national banks that have not yet implemented such policies. Such engagement channels, far from aggregating complaints, conversely correlate with a reduction in the overall proportion of project disputes.

Global community-infrastructure engagement and accountability norms have emerged out of crises, decentralised shared knowledge generation amongst national and multilateral banking institutions, resulting in legal innovations. This process has accelerated in the context of cross-border infrastructure development projects, which often involve coordination between national and multilateral standards. A learning orientation, accompanied by the creation of shared learning spaces such as the International Financial Institution Meetings, which are hosted by the world’s multilateral development banks on a rotating basis on themes such as information disclosure and stakeholder engagement, have resulted in growing agreement on relevant underlying principles and good practices in community engagement in the context of infrastructure planning.

Chapter 10 discusses the significance of qualitative differences among cultural, social, and political contexts, some of which are likely to support, and others undermine, the chances of tempering power. In some cultures, the notion that ruling power should and can be routinely and institutionally tempered, and that law is up to the job, is well embedded. In others it is heresy. And in any societies there are competing cultures, acted upon by internal and external forces. Some forms of society – particularly civil societies – are congenial contexts for tempered power. Other forms – ‘sacks of potatoes’ and polarised communities – are not. Some polities, such as despotisms and dictatorships, spurn tempering. Some forms of democracy support it; in some there is tension between the two. In contemporary elected populisms, tempering of the power of the ruler is undermined systematically and often with the help of law. And everything connects. Law is one domain among others and not always the most important.

This chapter first situates the book’s argument in the context of two global phenomena: the proliferation of hybrid regimes and the diffusion of court-centric constitutionalism. It then shows why a normative look at constitutional courts in hybrid regimes is an important, but overlooked topic in the literature. Next, the operating assumptions of the book are specified, and basic terms are defined, including constitutional courts and democracy. The chapter concludes by offering a roadmap of the book.

The final chapter of this book considers external challenges – namely, discourses and regulatory moves driven by concerns about state sovereignty and, relatedly, security and development – to the dual-sided framework in the current digital era. It starts by discussing to what extent China provides a counter-model to the liberal conception of information freedom and the dual-sided framework and argues that there is not really a Chinese (counter-)model. It moves to consider other Global South countries, looking at firstly Brazil and India and then the peripheries of the periphery. It argues that placed in a chain of dependence, practices of Global South countries generally do not present fundamental challenges to the dual-sided framework despite their genuine normative contestations. The chapter finally moves to recent sovereignist policies and discourses from the Western liberal world and observes that the main challenge to the dual-sided framework comes from an increasingly fascist United States.

This chapter explores how the Twa’s space of nature is created in Rwanda by the encounter between global narratives of indigeneity and conservationism with global capitalism and national social norms. These are refracted through the state’s nationalisation agenda and through policies that condition the access of Twa to resources such as land and together form an important element of the space in which they can negotiate their place in Rwandan society. The response of Twa to questions about nature suggests that they have no special connection to nature or to the forests more particularly. Instead, their responses locate them as ordinary villagers focused on subsistence farming and on survival, but draw also upon national cultural norms of success and status. Whereas traditional land is a key part of articulating indigenous identity in global discourse, the Twa’s desire for land cultivation is non-traditional and instead symbolises the aspiration to inclusion and belonging in the mainstream.

This chapter summarizes the arguments of the book. It highlights that for judges who are democratically committed, the book has offered the theories and tools to help them build institutional resilience and contribute to democratic values. These tools cannot guarantee these democractic outcomes, as there is a limit as to what judges have control over in authoritarian environments. Nevertheless, constitutional courts are often heavily involved in the shaping of constitutional norms and structures. By pushing beyond the boundaries set by conventional conceptions of the judicial role, this book hopes to have instilled optimism in politically challenging environments and demonstrate how judges who are committed to the democratic cause can improve the chances of survival and success of constitutional courts.