Whatever law offers, it never does it alone. It always does whatever it does within societies where a lot else is going on. Law has to make its way in various terrains full of obstacles, rivals, and alternatives. Chapter 9 explores some of the consequences of this ever-present buzz, movement, and competition for the ways law works in societies. Above all, it stresses the complexity of social causality that lawyers often ignore. Law sends messages. Once sent, they compete with messages from other sources, often more salient for many people, and they will be variably received, interpreted, and acted upon depending in part on the relationships between the centre and various ‘semi-autonomous fields’ and ‘indigenous orderings’ that occupy the society. In many of these fields other sources of norms and settlements will be available and sought. This is not a pathology but a reality. Those concerned to temper power need to take it into account.

This chapter discusses the first wave of systemic contestation of the liberal imagery of ‘free flow of information’ and the early dual-sided framework. One major front of contestation was Third World countries, which put forward a New World Information and Communication Order (NWICO) to de-monopolize, democratize, and decolonize the existing structure of international communication and develop their national information capacities as part of postcolonial nation-building. Another major front of contestation was within Western liberal countries struggling with domestic socio-economic crisis and resisting the US economic and technological supremacy. This chapter first revisits the NWICO movement and then discusses contestation of the liberal idea of ‘free flow of information’ from both the Global South and the Global North regarding regulation of the new information technologies of direct satellite broadcasting, satellite remote sensing, and informatics. It shows the complicated political, economic, cultural, ideological, and security dimensions of information, which fundamentally concern the organization of capitalist social relations.

The Introduction sets out the question and the scope of this book, and its theoretical and methodological framework. Drawing on historical materialism, it explains the anti-fetishist understanding of information taken by this book, which treats information as embedded in and constitutive of social relations and implicated in the distribution of power and order-making. Based on this historical materialist understanding of information, the Introduction sets out the book’s critique on the liberal treatment of information and its main argument that human rights and free trade have jointly and dialectically formed a hegemonic conceptual framework for the governance of information under international law which obscures the crucial material dimension of information and its connection to power.

Why has the rule of law had global rhetorical appeal in the last few decades, and will it last? I argue that during the Cold War there was no space for this to happen, but with the collapse of European communism it appeared to many that a western, liberal democratic package with the rule of law at its core was and would continue to be triumphant. As a result, rule of law promotion swept the world. It has not vanished today, but its prospects have dimmed. I attribute that to twentieth-century geopolitical changes, on the one hand, with rivals to liberal democracies springing up, as well as to the transformation within liberal democracies, on the other. Both new democracies and older, apparently well-established ones have spawned increasingly powerful tendencies hostile to the rule of law. These tendencies are unlikely to disappear any time soon. The fate of the rule of law will depend in large part on whether they succeed.

This chapter examines what judges can do to protect the judiciary and make their judgments more effective using off-bench tools and by relying on their social networks. It discusses four sets of tools. The first is relation-building. This chapter examines how alliances can be forged through two kinds of off-bench engagement - public relations and judicial diplomacy – and with eight potential allies of a committed court: (1) lawyers, (2) legal academics, (3) the media, (4) civil servants, (5) international organizations, (6) businesses, (7) the general public, and (8) fellow judges. The chapter then proceeds to explore a second set of tools: that on establishing diplomatic connections with hostile groups. Drawing on the concept of backchanneling, the chapter theorizes the potential dangers and benefits of clandestine engagement with hostile parties. The third and fourth tools to be discussed are protest and mobilization. The chapter ends with reflections on the option of resignation and argues that resigning should only be considered as a last resort.

This chapter argues that courts should play a role in protecting and promoting democratic values in a hybrid regime and lays out how that can be done. The chapter opens with the argument that the counter-majoritarian objection is singificantly less relevant in a hybrid regime context, contending that its reduced relevance permits the constitutional court greater latitude in its support of democratic ideals in a hybrid regime. Five different democracy-enhancing roles of a constitutional court are then proposed, alongside tools that would help facilitate the realization of these roles. The five democratic roles include: (1) the referee role, (2) the interpretative role, (3) the participatory role, (4) the quasi-representative role, and (5) the educative role. The chapter then addresses how competency concerns impact the democratic roles proposed. It argues that the democratic roles are justifiable because there is a lack of better alternatives in a hybrid regime. Courts are a second-best solution: they may not normally be the best institution to tackle certain political failures, but the inadequacies of the political process in a hybrid regime offer reasons for a constitutional court to act.