I Introduction

The rule of law has become all things to all people, which is why virtually everyone can agree that the rule of law is a good thing. To some, it stands for rule according to legal standards instead of according to personalistic whim.Footnote ¹ To others, it stands for purely formal criteria of legality – coherence, noncontradiction, clarity – with the specific content to be sorted out separately.Footnote ² To still others, it stands for predictability and order, a bulwark against the vicissitudes of politics.Footnote ³

Philosophical debates have erupted over whether the rule of law should be defined in a “thin” way through primarily procedural requirements or whether the rule of law should include substantive commitments to legal principles that would make the concept “thick.”Footnote ⁴ The variations are very nearly endless, especially when one considers the versions that grow from different national histories and that go by the name of the Rechtsstaat, estado de derecho, l’État de droit, jogállam, and more.Footnote ⁵

What most of these diverse conceptions of the rule of law share, however, is the unstated assumption that the rule of law should be understood within the boundaries of national law. The rule of law analyst typically takes the national legal system as if it were the only system in which rule of law had any real purchase and analyzes it in isolation. I will call this nationally focused conception the rule of law writ small.

As this volume makes clear, however, the rule of law is no longer properly analyzed as purely national.Footnote ⁶ Not only can one speak of international law as a rule-of-law system of its own (even if flawed),Footnote ⁷ but increasingly transnational lawFootnote ⁸ enters into national law itself and modifies (or at least is supposed to modify) the operation of what had been imagined by legal philosophers as a hermetically sealed-off space.Footnote ⁹

This is particularly true in parts of the world in which national legal systems are embedded in increasingly dense webs of transnational legal commitments. The member states of the European Union (EU) as well as the signatory states to the European Convention on Human Rights (ECHR) or the Inter-American Convention on Human Rights or the African Charter on Human and Peoples’ Rights are finding an increasingly large number of transnational law incursions on national law as nonoptional parts of their own domestic legal orders. Even more hard law and soft law emerge from international treaty body recommendations, ICRC protocols, WTO rules, bilateral investment treaties, UN Security Council resolutions, or even the UN Charter itself, and these may also constrain what domestic law should do. The United States and the United Kingdom, from which much of the rule-of-law literature in English originates, may be particularly allergic to being (or to admitting to being) encumbered by binding international legal obligations, but that is an increasingly marginal standpoint among the world’s democracies and an even more marginal reality in the world as transnational institutions gain more and more reach and enforcement capacity.

As we elaborate what the rule of law requires for any specific country, then, we should consider the national system as it is embedded in its transnational legal commitments. If the transnational legal order requires one set of actions while the national legal order requires another, it may not matter much to the daily life of the law whether each level is consistent and predictable within its own sphere. Legal certainty – the bare-minimum element of the rule of law – can only be obtained if the transnational and national legal orders do not require contradictory things, because otherwise legal subjects will be left wondering which apparently binding rule applies to them. Harmonizing law across transnational and national levels is required for the rule of law to be fully realized, regardless of whether one has a thin or thick conception in mind. Harmonizing across these levels in any given legal space constitutes what I call the rule of law writ large.

Why move from thinking about the rule of law writ small to thinking about the rule of law writ large? Thinking of the rule of law as necessarily embracing national and transnational principles helps us to reimagine one of the most important issues of our time: the global crisis of the rule of law. Around the world, once-democratic states are increasingly backpedaling on their constitutional commitments, as aspirational autocrats compromise the independence of judiciaries, eliminate constraints on executive power, destroy the independence of “fourth branch” good-government institutions, concentrate control of the media in politically friendly hands, restrict the operation of civil society groups, put a political squeeze on universities, and entrench themselves in power for the foreseeable future.Footnote ¹⁰ But, as we will see, transnational institutions are quickly developing increasingly hard legal standards that make democratic and rule-of-law backsliding ever more clear violations of transnational law.Footnote ¹¹

As long as one does not take into account transnational law, the activities of aspirational autocrats may appear to be perfectly in compliance with the rule of law in the sense of pure legality within the national legal system. In many backsliding democracies, autocrats remove key democratic protections in ways that are perfectly legal. When an aspirational autocrat comes to power with a parliamentary majority and passes laws that compromise the independence of the judiciary, what is wrong with that, especially if the (packed) constitutional court says that it was all constitutional? What is the problem if the parliament delegates unlimited decree power to the executive during a state of emergency, a power that is endlessly extended by continued parliamentary affirmation? These and other examples make clear that formal legality within a national legal system is not the same thing as the rule of law writ large. It may not even be the same thing as the rule of law writ small, but then one gets into the weeds arguing over precisely which definition one has in mind.

Of course, the vast literature on rule of law writ small was in general designed for just this purpose – to provide a critique of formal legality where it fell short of some normative standards.Footnote ¹² The question is how one generates those standards and whether they can be effectively deployed beyond an academic publication when real-world problems require answers. For most of the academic writing on the subject, the answer comes through political theory – in definitions of democracy, constitutionalism, and even rule of law.Footnote ¹³ But do those standards translate into persuasive public arguments at times of democratic crisis?

Using existing off-the-rack philosophical theories to understand what the rule of law requires often fails to address real-world problems. First, these theories often work by requiring their adherents to use familiar vocabulary in unfamiliar ways, which makes the acceptance of the theories by broader publics difficult. If democracy, for example, is only properly so called when those elected agree to be bound by the laws of their predecessors because that is what the rule of law requires, then what do we make of perfectly reasonable democratic demands for change? If the rule of law smuggles in conceptions of social rights unfamiliar in the particular context in which it will be deployed, then are those who think differently necessarily legal scoundrels? We can solve these problems by defining them away, but democratic publics can be forgiven if they think that definitional sleight of hand is too clever by half.

Second, theories of the rule of law can themselves be manipulated by those who are supposed to be constrained by them. Many autocratic leaders have their own theorists in chief who provide ready-to-hand political-theory answers to complex questions involving the rule of law.Footnote ¹⁴ In fact, in one of the most famous twentieth-century debates over the rule of law – the debate between Carl Schmitt and Hans Kelsen in interwar GermanyFootnote ¹⁵ – Schmitt’s ideas conveniently dovetailed with the interests of the Nazi regime he defended, so it was not surprising that he became their practical theorist of choice. Of course, most academic theorists write about rule of law precisely to oppose dictatorial and genocidal regimes, but nonetheless it is difficult to find good democratic – or, for that matter, rule-of-law – reasons to defend one academic theory over another without simply arguing from the practical consequences of adopting a particular view. It is easy to see how autocrats can then just say that the academic theorist is simply smuggling a preferred political position into the standards. Autocrats then feel justified in doing the same – manipulating the choice of theory while accusing those who oppose them of “looking over a crowd and picking out your friends.”Footnote ¹⁶

Instead, I suggest a less manipulatable and more comprehensible standard: using transnational law to guide transitions back to democracy in rogue states whose resident autocrats have used the law to consolidate power in their hands and attack the rule of law at home. Of course, transnational law is famously incoherent and siloed into different fields that often conflict; hence the calls for “constitutionalization” that have emerged over the years.Footnote ¹⁷ But an increasing body of transnational law deals directly with questions of democracy and human rights, the typical subjects of constitutionalism within national legal orders. Transnational standards are rapidly emerging in these fields, particularly in regional human rights courts. This new transnational legal scaffolding can support the rebuilding of democracy while it is under reconstruction from within.

By using transnational law as a framework within which to assess and urge changes to national law in states that are declining in their commitments to democracy and the rule of law, we can accomplish three purposes: (a) to elaborate in practice a common baseline of shared standards (thereby eliminating the “double standards” problem); (b) to develop methods for assessing the democratic and rule-of-law bona fides of backsliding states that are impossible for domestic parties alone to manipulate (which I will call the “North Star” effect); and (c) to provide a legal justification within national legal systems to make sharp breaks, if need be, with existing domestic autocratic law in order to harmonize national law with transnational democratic law (which I will call the principle of “asymmetric rupture”).

II Tackling Democratic Backsliding within the Rule of Law Writ Small

To show why we need to reach beyond existing national rule-of-law paradigms for democratic restoration, an example will reveal the state of the art. In late 2021, some Hungarian legal scholars tried to crowdsource proposals for a newly elected government to use in restoring democracy to Hungary.Footnote ¹⁸ Hungary had experienced one of the most spectacular collapses from being a star performer in the postcommunist transitions of the 1990s to being the leader of the democratic backsliders in the region in the 2010s, falling from democracy to autocracy in the space of one decade.Footnote ¹⁹ After his election in 2010 with a constitutional majority (that is, a majority capable of amending the constitution without partners), Prime Minister Viktor Orbán rewrote the entire legal system, including a new constitution and thousands of pages of laws, to lock power into his inner circle.Footnote ²⁰ The parliamentary election in 2022 looked like it would provide the first real chance to defeat Orbán because all of the opposition parties had agreed to work together despite the tilted electoral playing field and their own internal disagreements. The question for them was how they could govern if they won, given that Orbán’s constitutional revolution had created a dense thicket of laws that only a two-thirds parliamentary majority could change, while also ensuring that the opposition would almost surely never win even a simple majority in the parliament.Footnote ²¹ The crowdsourcing request asked what a new government could and should do to restore the rule of law, given that, as long as Orbán’s party held a mere one-third of the seats in the parliament, it could block virtually all significant changes to the system he had created. How could the opposition, if elected with a bare majority insufficient to alter the “two-thirds laws,” restore democracy within the rule of law, given that the national law would be arrayed against them?

Many of the proposals suggested what you would expect constitutional scholars to say. They suggested various ways to convene a constituent assembly to write a new constitution with multiple suggestions as to how to live with bad law in the meantime.Footnote ²² Since the European revolutions of 1848, this has been the dominant script of democratic reform.Footnote ²³ Come to power by revolution or election, convene a constituent assembly, and write (or rewrite) the constitution!

Constituent assemblies have played an important role in history.Footnote ²⁴ But they are not the only way that democratic transitions occur. Some of the constitutions that have been most successful at creating new stable democracies out of dictatorships – e.g., Germany’s and Japan’s – were written by experts meeting largely in secret while their respective countries were under foreign occupation. Others have been written under less-than-ideal circumstances in situations of nontransparency, including the 1989 Hungarian constitution itself.Footnote ²⁵ Even the much-valorized South African constitution, written with an unprecedented amount of public opportunities for input, turns out to have been written without its drafters taking on board most of the suggestions that arrived on their doorsteps.Footnote ²⁶ The recent Chilean constituent assembly, which precisely followed the ideal script, was met with a massive electoral rejection of its proposal.Footnote ²⁷ So constituent assemblies, when one looks at them close-up, are complicated and not nearly as participatory, democratic, or successful in action as they are in theory.

More crucially, though, this standard recipe for restoring the rule of law to autocratic countries through constituent assemblies is unlikely to work under present circumstances. In the 1970s–1990s, when first Southern Europe, then Latin America, and then Eastern Europe went through democratic transformations, the antidemocratic forces that were swept aside in these democratic revolutions mostly stood down and did not claim a continued right to rule. Their supporters, if they still had any, faded away quickly. Thus, new constitutions could be written without the dictators or their supporters at the table. Or, if they were there, they quickly vanished in the elections that followed.

In what is sometimes being called “Transition 2.0,” focusing on how democracy can be restored now after the autocratic governments have damaged the earlier version,Footnote ²⁸ the situation is quite different. By and large, those who destroyed democracy this time did not seize power through coups and military occupation, but instead came to power through elections.Footnote ²⁹ These leaders still have support – even if not majority support – among their citizens, and they will demand a role in whatever transition occurs. They and their supporters are not going away. Calling a constitutional convention with the autocrats and their followers at the table is therefore a tricky business. One might well risk a failure to make a democratic transition at all, especially given how adept the autocrats are at rigging the rules for constituent assemblies and how well the autocrats know the systems they designed, which gives them an advantage. Hugo Chávez in Venezuela and Rafael Correa in Ecuador provide two cautionary tales when considering how autocrats can rig constituent assemblies to their own benefit.Footnote ³⁰

If one has a purely national idea of the rule of law and the idea of a constituent assembly fails on practical grounds, then one is left with various unsatisfactory methods for getting out from under the laws created by an autocrat to preserve autocratic rule. Many Hungarian lawyers felt compelled to follow Orbán’s laws even as they sought to undermine them, because anything other than obedience to the laws laid down would constitute a violation of the rule of law. When the rule of law is used to justify the continuation of an antidemocratic system, something is wrong with the conception of the rule of law. And what is wrong with standard accounts of the rule of law is their national-only focus. Before explaining how the Hungarian opposition developed a plan to escape Orbán’s “constitutional prison”Footnote ³¹ if they had managed to win the election, which I will return to at the end of this chapter, we need to first see how transnational law can be useful in generating rule-of-law alternative paths for restoring constitutional democracy.

III Addressing Democratic Backsliding with the Rule of Law Writ Large

Transition 2.0, a move away from democratically damaged governments back to democratic health, starts with an important advantage. Across the world, many of the backsliding states are now members of regional bodies that require their members to remain democracies, uphold the rule of law and honor human rights.

In Transition 1.0, as democratic waves washed over Southern Europe, then Latin America, and then Eastern Europe, the transnational institutions that might have supported such democratic transitions did not generally include these transitioning states as members, nor did they have robust mechanisms in place to guide a transition to democracy at that time.Footnote ³² Southern Europe’s last dictatorships democratized in the 1970s mostly outside the Council of Europe (CoE) and what later became the European Union. Latin American dictatorships gave way to democracy in the 1980s, but at the time the regional institutions had not yet developed democratic enforcement tools. For the Eastern Europe states that emerged from the Soviet shadow in the 1990s, joining the CoE was relatively fast but joining the EU took well more than a decade. The EU had never formalized what its membership requirements were until it prepared the “Copenhagen criteria” precisely for the postcommunist states’ accession.Footnote ³³ While in each case full membership in the regional transnational organizations depended on discarding dictatorship, in none of those cases were elaborate democratic and rule-of-law standards well developed to guide these transitions in any detail.

Transition 2.0 starts in a very different place, with many of the problematically backsliding states already inside the tent of the transnational organizations. Before autocrats consolidated power in, for example, Venezuela and Ecuador, Turkey and Russia, or Hungary and Poland, their democratic predecessors had signed onto the jurisdiction of the regional bodies in better times. Now that the aspirational autocrats have come to power and are violating the criteria for admission to the transnational bodies that had membership requirements to get in the door, Transition 2.0 can then start from a different legal foundation. We can take advantage of the fact that many of the now rogue states are still bound by the membership requirements even as their national autocrats have violated these standards through backsliding. The standards of the transnational organizations can now be enforced by restoring the rule of law writ large. Best of all, since the now backsliding states undertook these transnational obligations of their own accord in a not too distant past, enforcing the standards of these transnational organizations simply holds the backsliding states to standards they once committed to follow at a more democratically robust moment.

Enforcement of these transnational standards through the rule of law writ large can occur in three stages. First, the rogue states should comply with transnational law as it applies directly to them. For example, they should honor the decisions of the regional courts and enforcement bodies that have already been made in cases that have arisen during the process of backsliding. They therefore should engage in direct compliance by starting with the obvious violations that have already been called out by transnational bodies with binding legal force in their specific country.

Then, Transition 2.0 should build out from there to bring rogue states into compliance with transnational law more generally, not just in the specific matters where the transnational bodies have already ruled directly against them but also in the spirit of the law that applies to all members of these organizations. Erga omnes compliance involves working out what the rules of these transnational organizations imply for the domestic governance of all signatory states, including the rogue states, and developing the links between these erga omnes standards and the specific offending practices of the rogue states so that they can be corrected.

Finally, rogue states should accept the transnational principles beyond the boundaries strictly required in a binding sense by applying general soft law principles to domestic arrangements that transnational law cannot strictly enforce. Supererogatory compliance with transnational values using this strategy would move national law even closer to transnational law but would be doing so without being strictly bound to do so by treaty commitments.

Why consider this strategy of using transnational law to supersede national laws as we think about rule-of-law cures for democratic backsliding? As states go through Transition 2.0 to restore democracy, human rights, and the rule of law, they may find that honoring transnational law now requires breaking national law that was enacted and enforced as states were backsliding. Since the autocrats who are being displaced in Transition 2.0 by new democratic governments have broken the letter and/or the spirit of transnational law in order to create dictatorships, these autocrats and their supporters can (and surely will) say that rupturing national law to restore democratic institutions is simply a political tit-for-tat that is no different from what they did. The autocrats will argue that the democrats are violating the domestic legal order simply to insert their political preferences in order to prioritize transnational standards, just as the democrats once accused the autocrats of having ruptured the legal order by “careening” into a democratically precarious situation in violation of transnational legal standards.Footnote ³⁴ Once we accept that the rule of law writ large requires that the national and the transnational be harmonized, the moves of the autocrats and the democrats can be cleanly distinguished. In addition, because it is generally beyond the reach of the national leaders to change the transnational standards, changing national law to create coherence and predictability across all levels of the law no longer looks like just another lawbreaking exercise that could be repeated if the autocratic forces come back into power. Instead, it can be justified as an exercise in honoring the rule of law writ large.

IV Applying the Rule of Law Writ Large within Europe: The Cases of Hungary and Poland

To make this abstract argument more concrete, we will work through the implications of the rule of law writ large by considering the potential transition of rogue states back to democracy inside a particularly dense web of transnational law. Hungary and Poland are among the leading democratic backsliders in the world, but both are member states of the European Union and signatories to Council of Europe treaties, including the European Convention on Human Rights. European law – particularly EU law and the ECHR – creates one of the most highly developed sets of binding transnational norms in the world, providing transnational standards for democracy, the rule of law, and human rights.

We have already noted that the major democracy-rating organizations now consider Hungary to no longer be a democracy, having fallen from being rated a consolidated democracy when Viktor Orbán first came to power in 2010 to being ranked a “hybrid regime” by 2020.Footnote ³⁵ It is almost surely not possible to change the government of Hungary through elections, since the election system has been so distorted that it guarantees victory to the governing party almost no matter what its level of public support is.Footnote ³⁶ Between being able to change the rules, threaten voters with dire consequences, hand out favors, and generate fake votes through an election machinery that it controls, the governing party in Hungary will almost surely never allow itself to lose an election. The 2022 Hungarian elections, rigged by the Orbán government, certainly confirmed that analysis – and the rule-of-law situation in Hungary deteriorated subsequently with the introduction of a “sovereignty protection law” that cut off all international support (including, by the way, EU support) to the civil sector, independent press, and Hungarian political parties.Footnote ³⁷ Nonetheless, given that the Orbán government will have to fall sometime, or at least be suspended from European institutions in the meantime,Footnote ³⁸ it is worth considering what compliance with the rule of law writ large would require in order to return Hungary to European good graces.

When the Law and Justice Party (PiS in Polish acronym) captured the presidency and both houses of the Polish parliament in 2015, the new government immediately attacked judicial independence in a particularly brutal and lawless way.Footnote ³⁹ Refusing to abide by many European Court of Justice (ECJ) and European Court of Human Rights (ECtHR) decisions, the government simply stonewalled European institutions that were trying to restore the rule of law. Because the PiS government had not completely captured the election law, though it had tilted the playing field in its direction, the 2023 Polish national election was still able to produce a new government in Warsaw, one that had the theoretical possibility of actually carrying out a Transition 2.0 to restore the rule of law. How could the new democratic government use transnational law to bring its own legal system back to democratic health?

In this part, then, I will elaborate on how the Hungarian and Polish governments could use the law of the transnational organizations they joined before their episodes of democratic backsliding as a blueprint for democratic reform. In the Polish case, this can even be seen as a practical road map for how to organize a democratic transition.

V Asymmetric Rupture: Breaking the Law to Establish the Rule of Law in Recovering Democracies

As we have seen, the rule of law writ large assesses rule-of-law compliance across multiple legal levels at the same time – both national and transnational – by examining the way that the levels complement and reinforce each other. The rule of law writ large exists when different levels of law do not pull in different directions, putting those who are simultaneously bound by those different levels of law into a bind of conflicting legal obligations. The rule of law writ large exists when common values thread through all of the levels at once without contradiction. By contrast, the rule of law writ small considers only the national level, so a domestic legal system can be coherent, consistent, and enforcing rules as written, but nonetheless exist in tension with other levels that remain outside the scope of examination. Autocracy can maintain some highly formal version of the rule of law inside a state as long as the domestic legal system is not required to justify itself externally.Footnote ⁸⁹ When autocracy becomes entrenched through law in this way, however, it may become necessary – and justifiable – to break domestic law to restore democracy again.

Break the law to legitimate a new democratic government? Surely this sounds rather dangerous. From a distance, moves that may be taken by a democracy-restoring government could look just like the moves that were already taken by a democracy-crushing government. After all, didn’t the rulers who installed rogue government win elections, change the laws comprehensively, fire incumbents who got in their way, and generally restructure the constitutional system so that the independence of all political and judicial institutions was subordinated to the political ideology of the governing party? A new democratizing government that is winning elections, changing the laws comprehensively, firing incumbents who get in the way, and restructuring independent institutions to match their democratic ideology may appear to be doing the same thing. It may be tit-for-tat, but that doesn’t make it right.

But this is where transnational law is crucial to distinguishing the two scenarios. Reconfiguring a legal order, even if done in a formally legal manner, breaks the rule of law writ large when it is done by those who are destroying democracy, when transnational law requires adherence to democratic values. By contrast, those same activities of legal reconfiguration can restore the rule of law writ large when they are done by those who are committed to bringing the national legal system back into harmony with the transnational one. In short, while both kinds of moves produce ruptures in the domestic constitutional order – including sometimes breaking domestic law to achieve change – they do not have the same objective justifications or the same relationship to the rule of law when the rule of law is writ large instead of writ small. The legitimacy of the two ruptures is asymmetric in that one direction brings more rule of law across different levels of legality and the other one brings less. Asymmetric ruptures to restore the rule of law writ large can therefore be justified in ways that symmetric ruptures to bring about a new rule of law writ small cannot.

But what about the democratic legitimation of such a course of action? All of this would be done over the heads of the democratic publics in whose name the new democrats govern, because the principles that would be taking priority – the transnational ones – would not have been voted for in the most recent election that brought the new government to power.

There are two important responses to this objection. First, the transnational obligations that are the sources of direct and erga omnes effects were in fact undertaken by previous democratic governments when they ratified treaties and joined the international organizations whose values they are. These principles were not imposed from outside but were undertaken as voluntary commitments to bind the signatory state into the future, much as a domestic constitution commits a government to basic principles beyond the term of a specific government. In fact, both the European Union and Council of Europe have provisions through which their members can quit and therefore bring themselves out from under the legal obligations that would otherwise attach to membership. Honoring international treaties is in many ways like honoring a national constitution. Treaties may not have been adopted by the current government, but they are also a solemn and long-term commitment meant to be carried forward by current and future governments. And, like constitutional revision or amendment, the legal obligations undertaken through treaties can be modified only by a solemn undertaking more complicated than ordinary legal enactments. The tensions between democracy and constitutionalism are well known, and the same tension exists between democracy and treaty commitments. This does not necessarily mean that honoring treaties is antidemocratic, particularly not as long as there is an exit option if a democratic state wants to move in a different direction.

Second, a new democratic government that feels it must break the laws of its predecessor in order to arrive at the rule of law writ large should not destroy more of the domestic rule of law than is absolutely necessary in order to harmonize across levels. A new government with the democratic wind in its sails needs to be both careful and public about what it is doing, maintaining a democratic spirit throughout the process even if it tramples on formal legality along the way. In this regard, parties that joined in a united Hungarian opposition in 2022 can serve as a model for how to do this. They actually put forward their plans to restore democracy by pledging to honor Hungary’s European legal commitments and built these plans into their election platform.Footnote ⁹⁰ If they had been elected, they would have taken the election result as a democratic ratification of their approach, including in the specific areas where they noted that they might have to break domestic law to come into compliance with European law.

After the Polish opposition won the 2023 parliamentary election, many of these same questions have arisen there. The Polish opposition did not agree on how to handle these transitional questions before the election, as the Hungarian opposition had, and so an agreement across the three coalition parties in the new government was struck only after the election. The coalition agreement vowed to reverse the damage to the judiciary inflicted by the PiS government and to nullify some decisions of the Polish Constitutional Tribunal holding that the Polish constitution is superior to EU law – a position at odds with EU legal doctrine.Footnote ⁹¹ That said, the coalition agreement did not say precisely how the parties would fix the damage to the judiciary, and from the start, fissures opened up in the new government’s ranks over this. Some advocated that the new government fire all of the judges illegally appointed under the past government, while others advocated that only the unlawfully appointed court presidents, who have the power to control judges in their courts and assign specific cases to specific judges, be replaced. Their disagreements showed that even if, as this chapter suggests, it may be possible work out legally what the democratic end-state should look like, there may be many controversies over the methods used to get there. This is not an easy problem, but the rule of law writ large provides a framework for the debate.

If a new government is going to engage in conduct that appears to violate the rule of law writ small in order to achieve the rule of law writ large, then the restoration of democracy should not be done furtively but should remain democratically accountable throughout the process. Law-breaking in the service of the rule of law writ large should be done openly, with clear explanation to democratic publics about why irregular procedures or other legal violations may be required in order to comply with basic principles of democracy, human rights, and the rule of law in the long run. Of course, the new democrats must put themselves before their publics in free, fair, and regular elections to get periodic endorsements (or rejections!) of their approach when their lawful terms end.

The legitimacy of this rule of law writ large strategy for restoring national rule of law is further enhanced by the “North Star” effect of transnational legal standards. Before the days of GPS, and even now among purists, sailors were guided on the open sea by reference to a fixed point of navigation that neither moved as they did nor was within their power to change. The North Star gained its strength as a navigation tool precisely by being fixed and outside the sailors’ control, just the way that transnational law operates as a strong point of reference that is (relatively) fixed and outside the reach of change by any of the parties to any particular domestic transition. When democratic transitions are negotiated in constituent assemblies or in pacted transitional bodies, the superior bargaining power of current autocratic incumbents (or even of previous autocratic incumbents who used their incumbency to erect roadblocks to change) means that the new democrats may have to compromise on crucial issues that limit the sort of democracy that they can restore. Tying the debate to transnational standards honoring democracy, the rule of law, and human rights would reduce the power of rogue incumbents in the negotiations while simultaneously not licensing newly elected democrats to do to the prior autocratic incumbents what those aspirational autocrats did to them. When the standard to be achieved is set outside the range of either party’s control, it acts like a North Star placing the steady point of navigation back to a safe democratic port outside the reach of those being guided.

By expanding our conception of the rule of law beyond national boundaries to encompass transnational law, particularly in an era when human rights courts and many transnational bodies are busily elaborating standards for democracy, human rights, and rule of law, we can develop a framework for encouraging the restoration of democracy in those places where it has been challenged. The conception of the rule of law writ large provides guidance for new democrats to use in bringing rogue states back into the democratic fold.

On July 6, 1989, Mikhail Gorbachev spoke before the Parliamentary Assembly of the Council of Europe.Footnote ² At the time, Gorbachev was president of the Supreme Soviet of the Union of Soviet Socialist Republics and secretary-general of the Communist Party of the Soviet Union; eight months later, he would be elected by a new legislative body, the Congress of People’s Deputies, as the first (and last) president of the Soviet Union. The Soviet Union was not a member of this international organization, but the newly created status of “special guest” had been conferred on it less than a month before Gorbachev’s arrival in Strasbourg.Footnote ³

His speech built on the metaphor of constructing a “common European home” for his country with those to its west. Like his twin pursuits of glasnost’ (“openness” of access to information and tolerance of public criticism) and perestroika (“restructuring” of Soviet economic and, later, political systems), both of which ultimately involved substantial legal reforms, this idea of a common European home was not a fully formed or static vision. “I do not claim to carry a finished blueprint of that home in my pocket,” he said. “I just wish to tell you what I believe to be most important.”Footnote ⁴

Gorbachev stressed that this common European home should be built on “security issues,” viz., nuclear disarmament and conventional force reductions. “The philosophy of the concept of a ‘Common European Home’ rules out the probability of an armed clash and the very possibility of the use or threat of force, above all military force, by an alliance against another alliance, inside alliances or wherever it may be.”Footnote ⁵ But if security concerns were “the foundation of a Common European Home, then all-round cooperation is its bearing frame.”Footnote ⁶ The load-bearing beams and lintels that he described spanned a range of economic and political issues across international and domestic lines. And just as reducing the threat of war would be accomplished by the use of international law, cooperation in these other areas implied reforms to core concepts of Soviet domestic law.

Gorbachev spoke of the “economic content” of this Common European Home and endorsed one focused on environmental protection. But he saved his final words for what he called its humanitarian content: “A world where military arsenals would be reduced but where human rights would be violated, would not be a safe place.”Footnote ⁷ Perhaps it was his legal training that led him to conclude: “We are convinced that the all-European process should rest on a solid legal ground. We are thinking of an all-European home as a community rooted in law.” Referencing a resolution passed by the USSR Congress of People’s Deputies (which, thanks to Gorbachev’s reforms, was a new legislature constituted by the first competitive elections in Soviet historyFootnote ⁸), Gorbachev called for the creation of “an ad hoc working group or a kind of European institute for comparative humanitarian law” and imagined “the possibility of creating a European legal space.”Footnote ⁹

The Soviet Union (and Gorbachev’s time in office) did not last long enough to build that space, but the project was taken up by the Russian Federation and its president, Boris Yeltsin. Merely a fortnight after the collapse of the Soviet Union, a letter from Russian Federation foreign minister Andrei Kozyrev was hand-delivered to the secretary-general of the Council of Europe, Catherine Lalumière: “The new Russia wholeheartedly shares the priority principles underlying the action of the Council of Europe – pluralistic democracy, human rights and the rule of law – and has been consistently applying them in its policy during recent years.”Footnote ¹⁰ The empirical claim was a gross exaggeration, but Russia asserted a foreign policy goal that seemed genuine: “the aim of becoming a full member of the Council of Europe.”Footnote ¹¹ The letter was followed by a meeting in February with the president of the Supreme Soviet, Ruslan Khasbulatov, and a personal visit to Strasbourg by Kozyrev in May.Footnote ¹² In between, the Constitutional Committee of the Supreme Soviet requested an examination of its draft constitution by the European Commission on Democracy through Law (the Venice Commission).Footnote ¹³

Thus began a four-year process of assessment, negotiation, reform, and promises of future reform, all focused on joining an international organization established to promote democracy, human rights, and the rule of law.Footnote ¹⁴ To use the language of transnational legal order theory adopted by Shaffer and Sandholtz, this was nothing less than a concerted effort to apply “normative orders that implicate law and legal practice across and within multiple national boundaries,” so as to adopt a “transnational framing and understanding of a social problem, which catalyzes actors to seek a resolution through law.”Footnote ¹⁵ The decision to admit Russia as a member was reached in 1996; Russia ratified the European Convention on Human Rights in 1998. As the millennium drew to a close, there seemed cause for genuine hope for a successful, if gradual, transition from the authoritarianism that was a hallmark of Russian and Soviet history toward a more embedded respect for the rule of law.

Roughly a quarter century later, all such hope had vanished as Russia began its full-scale invasion of Ukraine, a fellow member state in the Council. Twenty-seven days after the Russian army began its advance on Kyiv, the Committee of Ministers (the Council’s decision-making body composed of the foreign ministers of all member states) decided that Russia ceased to be a member.Footnote ¹⁶ In the words of the Statute of the Council Europe, Russia had “seriously violated” the Council’s core principles “of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms.”Footnote ¹⁷ The idea of a common European home – at least one that included Russia – had gone up in flames. Russia’s leaders were the arsonists.

Though this war of aggression had lit the match on Russia’s relationship with the Council of Europe, Russia’s incendiary actions had been threatening the organization’s inner workings as well as its members for some time. Inside the organization, for example, Russia blocked efforts to pursue procedural reforms in the European Court of Human Rights for more than three years, the only holdout among forty-six other member states between 2006 and 2010.Footnote ¹⁸ These reforms were needed in no small part because of the huge volume of violations of the Convention coming from Russia – between 23.2 and 28.9 percent of all applications pending before a decision body of the Court during this same time period.Footnote ¹⁹ Meanwhile, Russia engaged in violent disputes with fellow member states. In 2008, Russia created statelets in Abkhazia and South Ossetia, recognized by virtually no one, following its war with Georgia. In 2014, Russia first occupied and then annexed Crimea. These actions repudiated the customary international law principle of uti possidetis and flagrantly disregarded Article 2(4) of the United Nations Charter.

As this volume notes, “international law is critical for advancing the rule of law in multiple direct and indirect ways that affect individuals and societies.”Footnote ²⁰ So it should not be surprising that, during roughly the same time period, Russia also weakened the load-bearing structures within the Council of Europe’s key institutions, particularly its highly respected court of human rights. Increasingly resistant to the Strasbourg Court’s jurisdiction over claims that Russian law or official conduct violated the European Convention on Human Rights, Russia challenged and then repudiated that jurisdiction.Footnote ²¹ Simultaneously, President Vladimir Putin abandoned legal reforms initiated by his predecessor, Boris Yeltsin, as he saw less and less value to membership in the organization.Footnote ²² Changes to Russian law occurring in this period, some subtle and some quite brazen, moved from “rule of law” to “rule by law” as the Russian state reverted to past Soviet and even imperial Russian practices.Footnote ²³ This, too, fully bears out the observation made by Shaffer and Sandholtz that “[a]lthough political actors increasingly deploy rule-of-law discourse, they frequently abuse it to legitimate authoritarian rule, often in the name of law and order.”Footnote ²⁴ Notwithstanding continuing obligations under the European Convention on Human Rights, Russian officials turned the law and courts into weapons to assault regime opponents, silence dissenters, and privilege commercial interests valued by the state. This had repercussions for the international organization Russia had joined as much as it facilitated Russia’s retrograde descent into authoritarianism.

Russia has now revised its history of past eagerness to join the Council of Europe and other international organizations, now claiming this all to have been chimerical and built on false premises. “To tell the truth,” Foreign Minister Sergei Lavrov wrote in March 2023, “we no longer have any illusions about converging with Europe, being accepted as part of the ‘common European home,’ or creating a ‘common space’ with the EU. All these declarations made in European capitals have turned out to be a myth and a false-flag operation.”Footnote ²⁵ One by one, Russia abandoned security agreements central to Gorbachev’s earlier vision.Footnote ²⁶ The fact that the metaphor of a common European home originated with the last Soviet leader was cast into a memory hole.Footnote ²⁷ “There will be no ‘business as usual’ again,” Lavrov announced. “We will not knock on the closed door, let alone make unilateral concessions.”Footnote ²⁸

Thus, Russia’s relationship with the Council of Europe now has a beginning, a middle, and an end. Through an examination of primary sources, and with a particular focus on the rule of law, this chapter explores how the dynamics of Russia’s pursuit of membership in the Council of Europe affected both the Russian state and the international organization asked to admit it as a member. The chapter contributes a case study on how this international organization translated its rule-of-law values into measurable metrics for success and failure in seeking to establish the rule of law in Russia. And how, after roughly a decade of concrete advances, the effort foundered and then collapsed.

This study has more than academic or historical value. The policy questions that led to Russia’s hasty application to, and inclusion in, the Council of Europe have not changed. They will be the same questions in need of answer when, to quote Gorbachev again, the opportunity reemerges to ask “about the architecture of our ‘common home’, on how it should be built and even on how it should be ‘furnished.’”Footnote ²⁹

I Ambitions

Shaffer and Sandholtz note that “[u]ltimately, for the rule of law to become effective, it must be institutionalized as part of a culture of conduct.”Footnote ³⁰ Among those most influenced by Gorbachev’s thinking, there was considerable ambition to build up legal institutions and establish that culture.

In June 1987, Gorbachev reported to the plenum of the Party Central Committee the basic principle behind his economic reforms: “The approach is simple,” he announced. “One is allowed to do everything that is not prohibited by law.”Footnote ³¹ (Considering his position as the leader of a post-totalitarian authoritarian regime, such a view of law must count as apostasy.) At the XIX Party Conference held in 1988, a turning point for Gorbachev’s reforms, it was resolved that:

Increasingly, Gorbachev referred to a rule-of-law state and law-governed civil society (“правовое государство” and “правовое гражданское общество”) to describe what he insisted to be the key to his reforms, “a legal revolution.”Footnote ³³ This implied a state subordinated to law, a notion simply anathema to long-standing Soviet legal practice and the shifting influence of various Marxist-Leninist theories of law.Footnote ³⁴

This new thinking had practical implications. Soviet judges, long accustomed to “low status and few rewards,” were given heightened protections through a new appointments process, longer terms of service, and expanded jurisdiction to review the legality of state action.Footnote ³⁵ New laws on state enterprises and cooperatives expanded property and contracting rights of businesses, including an emerging class of entrepreneurs.Footnote ³⁶ And a 1989 law, also for the first time, “provided a mechanism for the direct incorporation of various international rules in the Soviet domestic legal system.”Footnote ³⁷ By that time, more than a third of the 1977 USSR Constitution – a document that had been amended just once before 1988 – had been subject to amendment.Footnote ³⁸ And in 1990, the constitution was further amended to eliminate the Communist Party’s monopoly and create the office of president of the Soviet Union. As Robert Sharlet notes, “In most Western constitutional systems, these systemic changes alone would represent an extraordinary development, nearly the equivalent of the constitutional transition from the Fourth to the Fifth French Republic under De Gaulle in 1958.”Footnote ³⁹ In the words of the late Bernard Rudden, “During the last years of its life the Soviet Union turned to law like a dying monarch to his withered God. … enact[ing] and amend[ing] statutes with the fervour of one who sees in legislation the path to paradise.”Footnote ⁴⁰

But institutionalizing the rule of law “as part of a culture of conduct” must extend beyond the leadership circle, whose consensus on its value is necessary but not sufficient to establish it. Even beyond institutions such as the legislature, judiciary, police, and administrative bodies (which are fed by, as much as generating, that “culture of conduct”),

The failure to entrench that culture can be seen as a fundamental factor in what can now be seen as the limited lasting effect of legal reforms attempted in the first decade after the collapse of the Soviet Union. No such rule-of-law institutions or culture had existed ever before in any space governed from St. Petersburg or Moscow.Footnote ⁴² The Russian Empire had no tradition of “law-boundedness.”Footnote ⁴³ It was “the ‘autocratic and unlimited’ ruler (to borrow tsarist terminology) who [] consistently set both the tempo and the tone of Russian law.”Footnote ⁴⁴ The starting point of Soviet legal thinking was the initial Marxist–Leninist belief in the withering away of law and state in their entirety – an idea (coupled with the Red Terror) that extinguished the spark of judicial and legal reforms imposed by Alexander II and weak constitutional reform coerced out of Nicholas II.Footnote ⁴⁵ And although the first Bolshevik decrees abolishing laws, courts, and lawyers were eventually found to be unworkable, the laws and legal institutions that built the Soviet system were conceived entirely in the service of the state – ironically, a theme of Russian history dating to the first Romanovs.Footnote ⁴⁶ No one put their purpose better than the first Soviet commissar of justice, Nikolai Krylenko:

Through multiple constitutions and shifting approaches to governance, ranging from the nihilistic vision of the early Bolsheviks to the ossification of a massive, centralized bureaucracy, Soviet law never withered away. Nor, at least until Gorbachev’s preliminary efforts, was there ever any sustained interest in the rule-of-law goal of opposing arbitrary power. In that context, Gorbachev’s efforts both stood out from this history and faced substantial obstacles to overcome it. For, as Alexander Lukin observed, “while arguing for the rule of law or a law-based state, ‘democrats’ saw law as a means of toppling the regime, as a tool that should have been directed mainly against their Communist opponents, while they themselves did not feel bound by what they considered to be outdated and unjust Communist laws.”Footnote ⁴⁸

Nevertheless, Gorbachev’s ambitious reforms seized the attention of Strasbourg, which had its own institutional ambitions. The Soviet Union had been an obstacle to the Council of Europe’s efforts to build democracy and the rule of law in a unified Europe since the Council’s founding in 1949.Footnote ⁴⁹ But Gorbachev increasingly appeared to open an opportunity: he was younger than his immediate predecessors (aged fifty-four in 1985, compared to Brezhnev (dead at seventy-five), Andropov (sixty-nine), and Chernenko (seventy-three)), comparatively much better traveled, and trained in law (the first such leader since Lenin).Footnote ⁵⁰ As his reforms began, though ever evolving throughout his leadership, there was significant debate among Western observers over whether this amounted to cosmetic repairs to the system or more systematic change.Footnote ⁵¹

Sharp-eyed observers in the top echelons of the Council of Europe perceived in his early efforts an opportunity to promote the core, unifying mission of the Council: human rights, democracy, and the rule of law. Among those observers was Catherine Lalumière, a deputy in the Parliamentary Assembly, rapporteur for its influential Political Affairs Committee, and the soon-to-be head of the organization. As will be seen, after having catalyzed Gorbachev’s invitation as rapporteur in 1988, she would preside as secretary-general at his speech in July 1989. Lalumière recognized the nineteenth Party conference as “an historic event.”Footnote ⁵²

She was right. Lalumière also recognized that this opportunity came at a time when her institution felt the need to reinvigorate itself. The Council confronted the accelerating success of competing international organizations. The European Community that would shortly become the European Union was one of them. It was clear that the EU – pursuing a single monetary union and open trade across national borders – would outpace the Council of Europe in economic (and therefore political) power. Another was the Conference on Security and Co-operation in Europe, which concluded the Helsinki Final Act of 1975. Principle VII and the “Third Basket” of the Final Act subjected a bevy of human rights issues to monitoring and rounds of follow-up meetings, overlapping with much of the Council’s raison d’être. Lalumière’s predecessor as rapporteur, Harold Lied, put the matter bluntly: “The crucial question for us is: who is to take the initiative in this European process?”Footnote ⁵³ As one high-ranking Council of Europe insider described his sense of the priorities at a time when the European Community “was starting to move into the Council’s own spheres of excellence”:

Lalumière made those arguments, keen to thread a needle between “the two pitfalls of over-enthusiasm and frosty caution.”Footnote ⁵⁵ On the one hand, she urged her colleagues against “displaying excessive caution” in responding to Gorbachev’s reforms, all the more so since, “[i]f we are to believe another resolution [of the 1988 Party Conference,] the Soviet Union is aspiring to become a state based on the rule of law … .”Footnote ⁵⁶ On the other hand, she recognized the need for the Council of Europe to stay true to its own principles: hastily engaging with countries unable to meet its high standards would be self-defeating and risk being “suspected of betraying the principles of democracy and human rights which our organization defends.”Footnote ⁵⁷ Still, one can sense her look-over-the-shoulder awareness that the rival European Parliament had already begun to contemplate inviting Gorbachev to visit in early 1989 and her concern that “the Committee of Ministers would be displaying excessive caution” if it waited for the CSCE’s Vienna follow-up meeting to conclude before inviting an aspiring Eastern European country to engage with the Council.Footnote ⁵⁸

These aspirations, as will be seen, could cloud judgment on both sides. This had an impact on Russia’s negotiated path to membership and, consequently, the strength of its legal reforms.Footnote ⁵⁹ Russian promises of various reforms – made to reassure the Council that its criteria for membership would be satisfied – sometimes were disconnected from practical realities. And decision-makers at the Council of Europe began to see Russia’s difficulties in satisfying those membership criteria as all the more reason to admit Russia into an organization that could help it achieve its professed goals. The most prominent critic of this approach referred to it as the policy of “therapeutic admission.”Footnote ⁶⁰

As Part II suggests, institutional pressures on the Council to renew its mission affected how the Council’s decision-makers perceived the strength of its applicants’ cases for membership, particularly the Russian case. That fact was not lost on the Russian side, which took advantage of those pressures as it pursued spirited negotiations for a place in the organization whose criteria for membership it struggled to meet.

II Negotiation

By the time of Russia’s application, the Council of Europe had an established process for admitting new members.Footnote ⁶¹ Article 4 of the Statute provided that “[a]ny European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe by the Committee of Ministers.” Article 3, in turn, required that every member “must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively” to pursue the Council’s aim to realize those ideals and principles.

By composition and institutional position, the Committee of Ministers is a political body. And Article 4 makes clear that a decision to admit a new member state requires a subjective political judgment, viz., that the applicant be “deemed to be able and willing” to comply with rule-of-law and other criteria. That these criteria are capable of more objective measurement, as well as the accretion of precedent about what “counts” to satisfy them, generates some constraints on decision-making but does not remove policy considerations from the final decision. This mix of law and politics in the decision-making process would emerge as particularly important in the Russian case.

Although the Committee of Ministers had the legal authority, an important consultative role had devolved on the Parliamentary Assembly, from which the Committee always requested an opinion in advance of its decision. This injected politics into the mix, too, but it also offered the opportunity for careful appraisal of an application by distinguished legal experts and rapporteurs for the Assembly’s committees:

Importantly, this work was not only an assessment of eligibility, but also a tool to leverage legal reforms satisfactory to the Council. As noted by Peter Leuprecht (who would rise to be deputy secretary-general of the Council before resigning in protest at the decision to admit Russia and Croatia as members): “Experience has shown that it is at the pre-accession stage that the Council’s representatives have the most leverage and can press for the reforms needed to bring the applicant country into line with the Council’s standards.”Footnote ⁶³

Ironically, that statement exposed a certain schizophrenia that developed in the organization as the Iron Curtain began to fall. Its original ten members could credibly assert (in the words of the preamble to the Statute) their “common heritage” of shared principles and values as “like-minded countries of Europe.”Footnote ⁶⁴ But the Council also aspired to grow “to create an organisation which will bring European States into closer association.”Footnote ⁶⁵ Growing eastward, that like-mindedness was more difficult to perceive and those values (especially concerning the rule of law) less firmly in place. What to do? This was the dilemma of “therapeutic admission”: Why should like-minded states sharing such a common heritage need to be leveraged and pressed for such reforms in the first place?

In Russia’s case, the Committee of Ministers invited the Parliamentary Assembly to express its opinion but put a heavy thumb on the scales right from the start:

Lest there remain doubt that this was a case of therapeutic admission, the Committee took note of Russia’s size and “the diversity of its cultural and administrative traditions” to acknowledge that “it will take time to translate theoretical freedoms into actual practice, and more especially to improve conditions for their respect in Russian administration and society.”Footnote ⁶⁷ Whether that translation from theory to practice and the improvement of conditions was a sine qua non for admission, or a desired consequence of it, was left diplomatically vague.

As in the past, the Assembly sought guidance from its Committee on Political Affairs, which in turn was informed by opinions from the Committee on Legal Affairs and Human Rights and the Committee on Relations with European Non-Member Countries.Footnote ⁶⁸ In addition, the Assembly requested a report from six “eminent lawyers,” three chosen from the then-existing European Commission on Human Rights and three from the European Court of Human Rights (all serving in their personal capacities).Footnote ⁶⁹ Each group wrote reports generated through visits to Russia, spot inspections, interviews, and meetings.Footnote ⁷⁰ This slightly confusing procedure is depicted in graphic form in Figure 8.1.

Figure 8.1

Council of Europe deliberative process on Russia’s application for membership.

Russia’s admission to the Council of Europe did not occur in a vacuum. After the fall of the Berlin Wall, the states once behind the Iron Curtain all began to seek membership. Hungary (November 1990), Poland (November 1991), and Bulgaria (May 1992) were followed by a rapid expansion in 1993: Estonia and Lithuania (May), the Czech and Slovak republics (readmitted separately in June following Czechoslovakia’s dissolution), and then, most controversially, Romania (October). Pressure built to allow accession despite deficiencies identified in committee reports. Thus, for example, Poland was granted conditional admission contingent on holding free and fair elections, which occurred more than a year later.Footnote ⁷¹ Estonia only partially fulfilled a commitment to protect the political rights of national minorities.Footnote ⁷² Romania, which rapporteurs concluded did not satisfy numerous membership requirements concerning the rule of law (including, for example, an independent judiciary), was admitted with a new monitoring procedure soon to be entrenched for all new members.Footnote ⁷³ Each change was precedent for more flexibility for the next applicant because, as was argued in the Romanian debates, “to close the door would deprive us of a means of exerting pressure on Romania to introduce democracy.”Footnote ⁷⁴

The Committee of Ministers adopted the resolution to admit Romania on October 4, 1993.Footnote ⁷⁵ This was the day before an important summit in Vienna of the heads of state and government of member states of the Council of Europe, at which the organization declared itself to be “the pre-eminent European political institution capable of welcoming, on an equal footing and in permanent structures, the democracies of Europe freed from communist oppression.”Footnote ⁷⁶ But it also coincided with the violent culmination of a constitutional crisis in Russia as President Yeltsin ordered tanks to shell the parliament building. Among his opponents there sat the chairman of the legislature, Ruslan Khasbulatov, who had met with Council of Europe officials in February 1992 as Russia began its application. European leaders gathered in Vienna expressed their “deep concern” and commitment to support “the message from the President of the Russian Federation reaffirming the irreversible policy of reforms and democratic transformation, conducive to the approachment of Russia with the Council of Europe.”Footnote ⁷⁷

Despite Yeltsin’s clear support for reforms to prevent a return to the Soviet past, and his rivals’ opposition to those efforts, this crisis and its aftermath were not a ringing endorsement of the rule of law in Russia. Yeltsin had ordered the legislature disbanded at the start of the crisis and, by its conclusion, had also suspended the operation of the Constitutional Court (which had held that dissolution order unconstitutional). Vice President Alexander Rutskoi (who sided with the opposition), Khasbulatov, and many of their supporters were imprisoned for months. Yeltsin removed from office the Constitutional Court’s chairman, Valery Zorkin, though neither he nor his fellow judges lost their liberty. A new, strongly presidential constitution and a weaker legislature were established through elections in December. Russia’s application was not off to a good start.

The report of the eminent lawyers was submitted in late September 1994.Footnote ⁷⁸ This could be said to have set the baseline for assessing how much must change in Russia for membership to become a reality. The report was the product of visits by four experts to Russia over twelve days in May and June for a tightly structured program of high-level meetings with executive, legislative, and judicial officials, journalists, lawyers, and civil society leaders, and inspection visits to jails and penal colonies in Moscow, Petersburg, and Krasnoyarsk.Footnote ⁷⁹

Rudolf Bernhardt, vice president of the Strasbourg Court, provided a general introduction to the report. He concluded that the detailed list of human rights in the new Russian constitution, like the institutional mechanisms for their enforcement, remained parchment promises: “[T]his seems to be more theory than practice. Nearly all officials and private individuals we have met concede and confirm that the implementation of the human rights guarantees in actual State practice has many deficiencies or is even non-existent.”Footnote ⁸⁰ This was not to discount significant advances, especially concerning a free press and media space, but in many more subject areas there was no recognizable advance from Soviet times. A new code of criminal procedure, for example, was held essential to “eliminate practices which are incompatible with several provisions in the European Convention on Human Rights.”Footnote ⁸¹ A particular concern was a culture of executive impunity: “the old ways of authoritarian thinking are still dominant in public administration. This seems to be a wide-spread ‘disease’ which might be understandable after so many decades of an authoritarian regime which led to deep-rooted patterns of behaviour.”Footnote ⁸²

The eminent lawyers also focused on discrete issues, many of which are foundational to a rule-of-law system. The preliminary conclusions (repeatedly acknowledging the limits of experts to gain firm understandings while working under such tight time and space constraints) were not optimistic:

This general view was shared by the expert charged with assessing conditions of confinement and respect for fundamental human rights in pretrial and postconviction detention facilities, Stefan Trechsel, chamber president of the then existing European Commission of Human Rights:

The findings by individual experts were reflected and emphasized in the conclusions of the four experts as a group. Keeping firmly in mind their charge (“whether the Russian Federation fulfils the prerequisite of being a genuine democracy showing respect for the rule of law and human rights”), they could identify discrete avenues of improvement in all three areas but concluded that Russia did not meet Council of Europe standards in any of them.Footnote ⁸⁵ Their conclusion concerning the mentality of officialdom was Cassandra-like: “The traditional authoritarian thinking still seems to be dominant in the field of public administration. … The courts can now be considered structurally independent from the executive, but the concept that it should in the first place be for the judiciary to protect the individuals has not yet become a reality in Russia.”Footnote ⁸⁶

The work of the Parliamentary Assembly’s committees, which had begun undertaking their own visits to Russia, was derailed almost before it began, when Yeltsin launched a full-scale air and ground assault on the non-Russian ethnic republic of Chechnya in December 1994. The horror that followed constituted “a grave violation of the Council of Europe’s most elementary human rights principles, which Russia, by requesting membership in the Organisation, pledged to uphold”, and the Assembly suspended indefinitely procedures concerning its opinion on Russia’s request for membership.Footnote ⁸⁷ As with the October 1993 constitutional crisis, the war in Chechnya exposed deep pathologies stemming from Russia’s Soviet and imperial pasts. Many of these were described in subsequent reports by the Legal Affairs and Human Rights Committee in late June 1995, which detailed humanitarian and human rights violations in Chechnya, and the disintegration of the rule of law there in a word picture worthy of Hieronymous Bosch’s imagination of Hell.Footnote ⁸⁸

As 1995 began, the Assembly’s president and its three committee rapporteurs received a letter signed by President Yeltsin, Prime Minister Chernomyrdin, and the chairs of both houses of the Russian legislature, Shumeyko and Rybkin. With the leveling of Grozny still underway, its assertions seemed incongruous: “Our desire to gain full membership of the Council of Europe is a logical consequence of our current policy aimed at establishing the rule of law, strengthening democracy and genuinely securing human rights in Russia.” Perhaps more encouraging was their admission that “we are aware that we still have a long way to go,” their promise to accede to the European Convention on Human Rights, and an attached list of concrete plans to improve the Russian legal system.Footnote ⁸⁹ This was followed in August by an updated list of legislative accomplishments and further reforms planned for the future.Footnote ⁹⁰

Bindig and Atkinson, at least, both mention this letter as crucially important to the process.Footnote ⁹¹ And there is no gainsaying the substantial and high-quality legislative efforts by which many of the promises in that letter were kept, including new codes of civil law (1994), criminal law (1996), and a law regulating the procuracy.Footnote ⁹² Others were promised for the near future, including new codes of criminal procedure (2001), civil procedure (2002), laws creating a commissioner of human rights (1997) and a professional bar (2002), and laws further protecting the rights of religious (1997) and ethnic (1999) minorities – all these came to fruition.Footnote ⁹³ These efforts often involved the assistance of experts from the Council of Europe, the US Department of Justice, and states with robust rule-of-law traditions. To take just one example, the new 2001 Criminal Procedure Code (a body of law identified by the eminent lawyers as needing substantial reform) was likened by many participants in its drafting to the “legendary” 1864 legal reforms of Alexander II.Footnote ⁹⁴ The Code shifted responsibility for pretrial detention from prosecutors to judges, strengthening core rule-of-law issues concerning the separation of powers and opportunities for the arbitrary use of power.Footnote ⁹⁵

The Parliamentary Assembly restarted its consideration of Russia’s application in September 1995, two months after what it called a “fragile” peace agreement in Chechnya under which “violations may continue.”Footnote ⁹⁶ A split had emerged between the Assembly’s committees. The Legal Affairs and Human Rights Committee, chaired at the relevant time by Rudolf Bindig, accepted that the peace agreement might allow the process to continue, but was quite pessimistic about outcomes: “development in the area of protection of human rights and the rule of law seems to have gone backwards, if anything.”Footnote ⁹⁷ The Political Affairs Committee, chaired by Ernst Mühlemann, on the other hand, resignedly accepted that future conflicts within Russia were possible (“Such is the heritage of dictatorships,” he wrote) but asserted that “[r]eform in Russia appears to be irreversible.”Footnote ⁹⁸ The Assembly resolution resuming the process reflected more the thinking of this latter committee:

But this perspective turned the membership process upside down. The reason to extend membership – a decision, as it turned out, just months away – now sharply discounted Russia’s present inability to satisfy the membership requirements. More important seemed to be the prospect of continuing dialogue, using the process to bring attainment of those goals within reach in the future. The reference to the “long-term direction” of transition made this sound predetermined and impliedly unidirectional. As Mühlemann would conclude in his report for the influential Political Affairs Committee, it was clear that “Russia does not yet meet all Council of Europe standards. However, integration is better than isolation; co-operation is better than confrontation.”Footnote ¹⁰⁰

This was the full-blown process and effects of “therapeutic admission” expanding eastward that so concerned Deputy Secretary-General Peter Leuprecht, leading to an overreliance on the goodwill of leaders and bureaucracies barely distanced from decades of repressive rule: “Some of the countries concerned suffer from serious evils and will have to go through a long healing process, but success in therapy presupposes the consent of the ‘patient.’”Footnote ¹⁰¹ The rapid admission of these states was seen as part of the “new purpose” of the Council of Europe traceable to Gorbachev’s “common European home” speech. Among those holding this view was David Atkinson, the chair of the Committee for Relations with European Non-Member Countries, the third PACE committee involved in the process.Footnote ¹⁰² The shift in purpose that worried Leuprecht was of far less concern to Atkinson:

Atkinson’s reference to the Russian presidential elections (which occurred in June 1996) points to an important factor in this process: the Russian side’s awareness of the Council’s institutional anxieties and flexibility over previously firm requirements. Fear of undercutting an ally like Yeltsin pervaded the debates on Russian admission because in January 1996, when the PACE vote occurred, “few analysts or politicians predicted that Boris Yeltsin would win reelection as Russia’s President.”Footnote ¹⁰⁴ It was lost on no one that the alternative to progressive-minded reformers could be communists, nationalists, or worse, who had met startling success in the December 1995 parliamentary elections.

Another source of empowerment for Russian negotiators – without concrete evidence, it is hard to conclusively call it a negotiating tactic – were rumors circulated about the creation of a regional human rights convention for states of the former Soviet Union. In such a body the Council of Europe perceived many perils. It was very unlikely to be as effective as the Strasbourg system, thus diminishing the likelihood of lasting rule-of-law and human rights reforms. Its very existence would threaten the ability of the Council of Europe to satisfy its unifying ambitions. These twin anxieties were fed from the beginning. When the eminent lawyers asked “during a meeting in the Institute of State and Law of the Russian Academy of Science, for information on the relationship between such new Euro-Asian organs and the organs under the European Convention on Human Rights, we were told that an individual complaint should at first be submitted to the new system and only thereafter, if necessary, to the institution(s) in Strasbourg.”Footnote ¹⁰⁵ The prospect of conflicting positions by different regional human rights bodies with jurisdiction over the same space was chilling enough that renunciation of this plan was explicitly included in the list of commitments Russia promised to undertake in exchange for membership.Footnote ¹⁰⁶

By the time of the Assembly’s vote, two conclusions seemed inescapable. First, the shift to therapeutic admission (replacing benchmark prerequisites) was complete. The Political Affairs Committee, by a vote of 24–4–6, recommended Russia be invited to join the Council because “Russia is making progress towards becoming a state based on the rule of law.”Footnote ¹⁰⁷ (Put more bluntly by the Legal Affairs Committee, “the Russian Federation cannot be regarded as a State based on the rule of law.”Footnote ¹⁰⁸) Second, the Council of Europe took this action fully aware of the most threatening of Russia’s rule-of-law problems:

Thus, the Assembly debate opened with the unchallenged admission of the “first, primordial concern” of arbitrariness that Shaffer and Sandholtz identify with the absence of the rule of law: “where the wielder of power is not subject, in practice, to the law, its controls and limits.”Footnote ¹¹⁰

On January 25, 1996, the Parliamentary Assembly voted 164–35 to recommend membership.Footnote ¹¹¹ It identified twenty-five concrete commitments to be undertaken by the Russian Federation in exchange. These needed to be done to satisfy the interpretive gloss the Assembly gave to the admission requirements stated categorically in Articles 3 and 4 of the Statute but expressed now in a future conditional, noting “the Assembly believes that Russia – in the sense of Article 4 of the Statute – is clearly willing and will be able in the near future to fulfil the provisions for membership of the Council of Europe as set forth in Article 3 … .”Footnote ¹¹² The Committee of Ministers extended this invitation a fortnight later, declaring that “the Russian Federation complies with the conditions” for membership.Footnote ¹¹³

III Participation

At least for a while, the decision to admit Russia continued to produce positive results: modernized codes of law, increased procedural regularity in a judiciary with greater insulation from political forces, and the gradual, concomitant development of stability and predictability in relations between state and citizen that are hallmarks of the rule of law. Nor did accession end the process of legal reform, although Leuprecht proved to be right that the Council had the most leverage at the pre-accession stage. In significant ways, the Council of Europe’s institutions kept a close eye and a guiding hand on Russian developments.Footnote ¹¹⁴

But as time passed, Russian officials cared less and less about this relationship. With the resignation of President Boris Yeltsin, a sharp break was created in Russia’s relationship with the Council of Europe. Vladimir Putin was appointed to the office of prime minister in August 1999 as a wave of terrorist attacks swept Russia. He had not participated in any part of the accession process or presided over Russia’s first years as a member. Yet it would fall to him to bring the idea of a common European home and the promises of the lengthy accession process to reality.

Putin responded to those attacks by launching a second, brutal war in Chechnya. Council of Europe observers condemned widespread violations of human rights and humanitarian law.Footnote ¹¹⁵ In 2005, Atkinson and Bindig, serving as monitors of Russia’s past promises, used variations on the phrase “climate of impunity” more than ten times in their report, mostly about violations of human rights in Chechnya.Footnote ¹¹⁶ This was the third such report, following those in June 1998 and April 2002. Even the rapporteurs acknowledged that the ordinary biennial reporting requirement for a monitored country had proven impossible in Russia. It was becoming clear that Russia was in little hurry to make good on many of its commitments, even as it struggled to abide by others.

One commitment kept, however, was ratification of the European Convention on Human Rights. Russia ceded jurisdiction to the European Court to interpret and apply the Convention and agreed “to abide by the final judgment of the Court in any case” in which it was a party.Footnote ¹¹⁷ This provides useful metrics to measure both the Court’s effects on the development of the rule of law in Russia and Russia’s effect on the operation of the Court.

The first data point worth considering is the rapid rise of merits judgments found against Russia. These are tabulated in Figure 8.2.Footnote ¹¹⁸

Figure 8.2

Judgments on the merits by the ECtHR concerning Russia, 2001–22.

The number of judgments finding no violation of Convention obligations remains consistently small, while findings of violations rise precipitously over time (depressed only slightly by reforms Russia itself stalled). Judgments against Russia as a percentage of all merits judgments across member states also rises, from single digits to an astonishing 32.1 percent in 2022. After 2016, Russia accounted for nearly a fifth of all judgments every year.

These statistics correlate with a consistently large and disproportionate share of pending cases awaiting the Court’s assessment. Figure 8.3 shows this effect in absolute and percentage terms.Footnote ¹¹⁹ Only during a short period in which the Court’s procedural reforms helped dispense with many cases (again catalyzed in no small part by Russia’s volume) did Russia account for less than a fifth of all pending cases. Many have commented on the effects on the entire Strasbourg system of such a backlog clogging the Court’s docket.

Figure 8.3

Pending Russian cases allocated to judicial formations of the ECtHR, 2006–22.

Most telling of all, however, are the nature of violations. Figure 8.4 identifies Russia’s four most numerous types of violations each year.Footnote ¹²⁰ Every single year, Russia violated the Article 5 right to liberty and security, which protects various fundamental interests during arrest, pre- and posttrial detention, and other forms of deprivation of physical freedom. For fourteen of twenty years, this was the leading violation. Russia violated the Article 6 right to a fair trial in all but two reporting years. Similar violations for the excessive length of judicial proceedings or for the absence of effective state investigation into loss of life, torture, or inhuman treatment are ubiquitous, as is the substantive violation of the prohibition in Article 3 against torture and inhuman or degrading treatment or punishment.

Figure 8.4

Leading violations of the Convention by Russia by year, 2003–22.

The steadily rising number of cases concerning these various rights suggests the dismantling of the Council’s therapeutic efforts in Russia. The very first case concerning Russia was brought by pensioner Burdov seeking payment due for work at the Chernobyl nuclear disaster. Despite repeatedly suing the state, Burdov could not enforce his favorable judgments. A unanimous court held that Russia violated both Burdov’s property rights and his Article 6 right to a fair trial since “that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.”Footnote ¹²¹

The emergence of increasingly effective courts able to enforce property rights within a reasonable time would seem a strong indicator of the strengthening of the rule of law in a state. But not only does this chart show Russia’s regression from that very first judgment, seven years later, the same Burdov succeeded with the same claims in Burdov v. Russia (No. 2), in which the Court sua sponte also found a violation of the Article 13 right to an effective remedy.Footnote ¹²² Likewise, the second case decided against Russia concerned egregiously inhuman and degrading (and lengthy) conditions of pretrial confinement.Footnote ¹²³ As Figure 8.4 shows, these violations increased over the duration of Russia’s membership. Starting in 2009, violation of the right to an effective remedy was a leading (and increasingly frequent) violation every year save two. Violations of the prohibition against torture, inhuman and degrading treatment or punishment, and lack of effective investigation of such matters remained prominent and increased. Such cases of mistreatment, ineffective mechanisms of judicial control, and indifference to holding state officials accountable strongly suggest the “five sources of arbitrariness to which different rule-of-law prescriptions respond.”Footnote ¹²⁴

With hindsight, discrete cases now seem akin to canaries in a coal mine. Vladimir Gusinskiy was detained at the notorious Butyrka prison and compelled by an acting minister for press and mass communications to sell his media holdings to a state company (at that company’s price) in exchange for his freedom – an abuse of power in which the Strasbourg Court had little difficulty finding a pretextual use of law.Footnote ¹²⁵ With remarkable understatement, the Court noted that “it is not the purpose of such public-law matters as criminal proceedings and detention on remand to be used as part of commercial bargaining strategies.”Footnote ¹²⁶

The arrest and separate convictions of another oligarch, Mikhail Khodorkovsky, and the nationalization of his Yukos Oil Company led to the Court’s largest-ever award of damages (€1.8 billion).Footnote ¹²⁷ Khodorkovsky’s second conviction prompted analysis by experts selected by the Russian Presidential Council on the Development of Civil Society and Human Rights.Footnote ¹²⁸ The experts’ reports led the Council to recommend, inter alia, review of the verdict with a view to its repeal due to fundamental errors and violations of law at trial.Footnote ¹²⁹ These reports and recommendations were submitted to President Medvedev shortly before Vladimir Putin’s return to the presidency, following which there began a criminal investigation and harassment of the Russian experts.Footnote ¹³⁰

A short time later, the Yukos case was the second of only two cases selected by the Russian Constitutional Court to employ a 2015 law that gave the Court responsibility (not the mere discretion) to prohibit compliance with ECtHR judgments found contrary to the Russian Federation’s constitution. There is reason to think the law was promulgated with this arbitrary purpose in mind.Footnote ¹³¹ The Russian Court applied this law to hold that Russia could not pay the Strasbourg Court’s massive award.Footnote ¹³² For the first time, a member state’s highest court had directly challenged the authority of the European Court and flatly refused to permit execution of its judgment.Footnote ¹³³

One can add other names now also recalling abuses of power that could reach individuals both abroad and within Russia: Alexander Litvinenko, assassinated with polonium-210 in London in 2006; Boris Nemtsov, assassinated outside the Kremlin in 2015; Vladimir Kara-Murza, twice poisoned, in 2015 and 2017, and imprisoned; Alexei Navalnyy, poisoned with novichok in 2020 and imprisoned (where he died in 2024 under suspicious circumstances). More could also be said about the deconstruction of legal protections that meant little without the institutionalization of a mindset that had been recognized as missing from the start. Unlike a statute, such an ethos could not simply be promulgated.

IV Conclusion

Russia presented the Council of Europe with a devilish problem of practical definition: How much rule-of-law reform was enough to join an international organization for which the rule of law is a prerequisite? This question arrived when the organization, uncertain about its future, was presented with opportunities to aid in legal and democratic reforms sought by states emerging from behind the Iron Curtain. The momentum that built in the Council’s accession process enveloped nearly half of Europe in a well-intentioned effort to foster the rule of law and other values in countries with histories revealing varying levels of experience with them. This led to a process the deputy secretary-general of the organization called therapeutic admission that was full of risk, Russia’s admission especially so.

Russian leaders who took no part in imagining or attempting to build a common European home presided over the dismantling of its limited success. In that destruction, what was a liability for reformers like Gorbachev and Yeltsin served as a means of control for Putin. Amending slightly the words of the Committee on Legal Affairs and Human Rights, the mentality toward law had not changed, at least not enough.Footnote ¹³⁴ No amount of legislating or adjudicating could speed up that change in time. “Such is the heritage of dictatorships,” Mühlemann acknowledged, and Russia had been one for centuries.

It can only be hoped that the experience of nearly thirty years that spanned this relationship from start to finish offers a better start to the next opportunity Russians and Europeans may have to attempt to build that home again.

In the early to mid 2000s, the ‘new’ Turkey under the leadership of the Justice and Development Party (Adalet ve Kalkınma Partisi, or AKP) was seen by the international community as a beacon of light in the Middle East. Within a decade, Turkey has turned from a country in democratic transition whose reforms earned it European Union (EU) accession status and victories at the European Court of Human Rights (ECtHR) to one engaged in systematic rule-of-law violations, state violence, and legal repression. A decade later, Turkey is an autocratic country under the one-man rule of Recep Tayyip Erdoğan, who has eroded any remnants of rule of law and democracy. Yet, none of the human rights and rule-of-law transnational legal orders (TLOs)Footnote ¹ of which Turkey formally is a part has sanctioned this country.

From one perspective, this is nothing new. Turkey has never been a democracy, despite its decades-long engagement with European institutions. Its frequent military interventions have all taken place since Turkey joined the Council of Europe (CoE) and ratified the European Convention on Human Rights (ECHR) in 1954. As far as the EU is concerned, with the exception of the first, all of these interventions took place after the signing of the 1963 Association Agreement. Throughout, European institutions repeatedly upheld their security interests, in preference to human rights in support of the rule of law, by failing to sanction Turkey.Footnote ²

Nonetheless, there is something truly puzzling in the current situation. The worst instances of state violence have occurred since Turkey recognized the ECtHR’s compulsory jurisdiction in 1990. By the mid-1990s, when violations in the Kurdish region had reached the level of atrocities, the ECtHR had evolved into a powerful regional court.Footnote ³ One decade later, it was the world’s “most effective court,”Footnote ⁴ operating under the world’s “most effective human rights regime.”Footnote ⁵ Yet, despite hundreds of adverse ECtHR judgments, Turkey did not change course. Under Erdoğan, the country evolved into a full-blown autocratic regime despite its EU accession status, ordinarily reserved for adherents to the rule of law.

In light of all of this, European institutions’ failure to sanction Turkey is perplexing. As Turkey’s systemic rule-of-law violations intensified, the ECtHR became increasingly inaccessible for their victims. Contrary to Tom Ginsburg’s assessment of the CoE as a regional organization where liberal member states stand up for “the defense of democracy,”Footnote ⁶ none of them brought an interstate case against Turkey nor sought its suspension from membership. Similarly, the EU and its liberal members continue to let Turkey reap the political, financial, and reputational benefits of its accession-country status. Even more, they have taken steps to deepen relations with Turkey in some areas, most notably through the 2015 refugee agreement.Footnote ⁷

Is the Turkish case a singular story of democratic transition gone wrong, or does it speak to broader issues concerning the ways in which human-rights and rule-of-law TLOs interact with authoritarian regimes? Claiming the latter, this chapter puts forth theoretical insights based on an empirical analysis of Turkey’s relationship with European institutions. Going beyond conventional analyses that characterize interactions between international institutions and nation-states as one-way relationships where norms flow (or not) from the top down, it looks into what Gregory Shaffer and Wayne Sandholtz call the “enmeshment of national and international trends.”Footnote ⁸ Doing so, however, it does not solely ask whether and how human rights norms are applied in authoritarian contexts, but also how international organizations tasked with upholding the rule of law not only permit illiberal states to violate those norms but also themselves undermine such norms.

While I also analyze the EU in this regard elsewhere,Footnote ⁹ in this chapter I focus on the CoE, more specifically the ECtHR, for several reasons. First, since Turkey is not a member state, quasi-judicial and judicial EU sanctioning mechanisms are not available against this country; the EU’s toolbox is limited to suspending/ending the accession negotiations and cutting down/freezing preaccession funds. In contrast, as a CoE member, Turkey is under obligation to uphold the rule of law, democracy, and human rights and to comply with ECtHR judgments. Second, contrary to the EU, which has received a fair amount of criticism for its inadequate action vis-à-vis democratic backsliding in Hungary and Poland, the ECtHR has not been sufficiently held accountable for its failure in Russia, Turkey, Azerbaijan, and beyond; its ineffectiveness has been mainly attributed to compliance failure. In reality, as the Turkish case illustrates, the ECtHR has never made full use of its powers to expose systemic rule-of-law and rights violations in authoritarian regimes.

I Conceptualizing the Rule of Law

As Martin Krygier has put it, the rule of law “has become an unavoidable cliché of international organizations of every kind.”Footnote ¹⁰ Virtually all international and regional institutions require actual and prospective member states to adhere to the rule of law without specifying what that actually means.Footnote ¹¹ Scholarship has not provided much clarity either;Footnote ¹² the rule of law remains an “essentially contested”Footnote ¹³ and “elusive”Footnote ¹⁴ concept. For some, it refers to a mode of governance where rules abide by procedural criteria such as generality, foreseeability, applicability, certainty, and nondiscrimination.Footnote ¹⁵ Proponents of a thick formulation argue that there can be no rule of law without individual rights, democracy, and justice.Footnote ¹⁶ Accordingly, what distinguishes the substantive conception of the rule of law is that it is designed by democratically accountable officials and institutions with the goal of advancing and upholding fundamental rights and individual justice.

Another way in which legal theorists and philosophers approach conceptualizing the rule of law is, instead of listing its institutional elements “as though they were ingredients in a recipe,”Footnote ¹⁷ to ask what it seeks to achieve. In Brian Tamanaha’s functionalist approach, the rule of law exists when law provides security and trust, social order, individual liberty, and economic development; restrains officials; gives prominence to legal professionals; and, most controversially, reflects and maintains power structures in society.Footnote ¹⁸ For Terry Nardin, the rule of law is first and foremost “a moral idea,” which limits the exercise of powerFootnote ¹⁹ – in contrast to rule by law, where powerholders “make and enforce legal norms … to regulate and control the population.”Footnote ²⁰ In Krygier’s end-oriented approach, while “never the only thing we want,”Footnote ²¹ what is distinctive about the rule of law is that it aims at the “institutionalized tempering”Footnote ²² of power. Power is arbitrary when it is uncontrolled, unpredictable, unrespectful, and ungrounded.Footnote ²³ Where a reason is provided, its pursuit must be proportionate to that goal. A goal-oriented approach cautions against the authoritarian capture of the rule-of-law rhetoric, where law functions “as an instrument of power” rather than “a constraint on the exercise of power.”Footnote ²⁴

But what is the rule of law’s relationship to democracy and human rights? As distinct as these concepts are, can they exist in isolation or are they sine qua non elements of each other? If the goal is to ensure the nonarbitrary exercise of power, can that be achieved without democratic accountability and representation? How can power be tamed in the absence of the free exercise of civil and political rights? Gregory Shaffer and Wayne Sandholtz point out that when those governed by the law have no input in its substance, “adherence to rules is less a matter of choice and more a reflection of power relations.”Footnote ²⁵ Thus, democratic participation in lawmaking processes is a sine qua non of the rule of law, even by its thin conceptualization. Similarly, the nonarbitrary exercise of power can be possible only in contexts where rulers adhere to fundamental human rights norms, such as the right to due process. So, the thin/thick distinction is not conceptually sound nor practically attainable.Footnote ²⁶

Socio-legal research has demonstrated that the rule of law and rule by law do not represent a binary, but rather, as Jens Meierhenrich has put it, “a continuum of legality”; there are variations of both ends of the spectrum and countries may fall in different points along the continuum at different times.Footnote ²⁷ The rule of law (a normative state) and rule by law (a prerogative state) may even coexist in “hybrid authoritarian regimes”Footnote ²⁸ – a truth verified in contexts ranging from the military dictatorship in Chile to the single-party rule in China.Footnote ²⁹ Whereas the dual states in Nazi Germany and apartheid South Africa operated along racial lines, much of empirical scholarship concerns hybrid cases, where the rule-of-law bit applies to the economic sphere to attract foreign investment, whereas the political sphere is ruled by law to suppress the opposition. In reality, authoritarian regimes often go beyond that and blend rule by law with lawlessness by simultaneously operating inside and outside the law. China under Xi Jinping turns both to law “as a tool of governance” in the economic sphereFootnote ³⁰ and to lawlessness to engage in what has been argued to constitute genocideFootnote ³¹ or crimes against humanityFootnote ³² against the Uyghur minority. Nor is the dual state limited to antidemocratic contexts. As Michael McCann and Filiz Kahraman show, the binary of liberal democracies of the Global North and authoritarian regimes of the Global South as regime types respectively representing the rule of law and rule by law does not match reality. Legal hybridity is much more common and the (racialized) dual state also exists in countries where certain parts of the population have systematically been denied their core liberties, albeit in varying degrees over time.Footnote ³³

Where we stand, many things remain unresolved. One concerns the use of violence. Much of socio-legal research on rule by law is limited to repression as a form of governance. What to do with instances where the state turns to violence toward certain (racialized) segments of the population in utter lawlessness? Examples are plenty – dictatorships in the Southern Cone of Latin America, Russia in the Northern Caucasus, Turkey in the Kurdish region, China in Xinjiang, and so forth. This goes far beyond the arbitrary exercise of power, which McCann and Kahraman label as authoritarianism, and speaks to a mode of governance, which is illiberalFootnote ³⁴ or antiliberalFootnote ³⁵ in the sense that it denies core civil liberties to specific groups within the populace. Thus, if we are to agree that the rule of law stands on one end of the spectrum, the far end seems to be lawlessness, not rule by law, and the dual state or “authoritarian legalism”Footnote ³⁶ stands somewhere in between. The dual state’s prerogative half need not only refer to the sovereign’s violation of its own laws but also extends to institutionalized lawlessness.Footnote ³⁷

Another outstanding question concerns the object of our inquiry. Scholarship predominantly focuses on the nation-state and to the extent that it turns its lens on international institutions, the analysis is limited to their impact, or lack thereof. The relationship is defined in unidimensional terms where norms flow (or not) from the supranational to the domestic level. Certainly, this dualist perspective has faced formidable challenges recently. Halliday and Shaffer adopt an empirically based theoretical approach which integrates top-down and bottom-up analyses to understand the variable ways in which legal norms and practices are “developed, conveyed, and settled” transnationally through a “dynamic tension” between the local, national, international, and transnational levels.Footnote ³⁸ Similarly, Shaffer and Sandholtz argue that the interaction between national and international laws and practices is recursive, in that the erosion in the former implicates the latter, cyclical, in that it alternates between positive and negative cycles, and variable, in that it changes within and across regions.Footnote ³⁹ Tom Ginsburg provides a global, empirical overview of the rising authoritarian threat to the international order, documenting the ways in which illiberal norms and practices are competing with their liberal counterparts – an international rule by law, so to speak.Footnote ⁴⁰ Kim Scheppele documents how “autocratic legalists” not only defy the EU’s founding norms and rules but also seek to undermine its capability to respond to the illiberal challenge.Footnote ⁴¹

Yet, we lack comparable empirical work on the performance of other international institutions facing authoritarian backlash to their rules and norms. Nowhere is the gap between scholarly assessments and empirical reality as wide as in the practice of the ECtHR. A growing body of scholarship places this court on the receiving end of backlash without sufficiently inquiring into its own role in the rule-of-law crisis in Europe.Footnote ⁴² While the European Commission and, to some extent, the European Court of Justice received considerable critical attention by scholars of rule-of-law backsliding within the EU,Footnote ⁴³ the ECtHR enjoys scholarly praise as the bastion of liberal democratic order in Europe.Footnote ⁴⁴

What lies beneath this skewed depiction of the ECtHR is a methodological bias. With the exception of a few,Footnote ⁴⁵ scholars base their empirical analyses solely on judgments – where the ECtHR addresses the merits of the case.Footnote ⁴⁶ Yet, such rulings constitute a tiny fraction of the ECtHR’s jurisprudence – only 9 percent. Of the cases reaching Strasbourg, 84 percent are rejected as inadmissible, while 6 percent are struck out on grounds of friendly settlements and 1 percent on grounds of unilateral declarations.Footnote ⁴⁷ It is this giant bottom of the iceberg where most of the “enmeshment” of ECtHR norms, national rules, and practices occur. What this publicly invisible interaction reveals is not a “trustee court” holding states accountable for their violations,Footnote ⁴⁸ but an international institution enabling the consolidation of authoritarian legalism.

To address these gaps in rule-of-law scholarship, this chapter focuses on the ECtHR’s interaction with Turkey to inquire how human rights courts do and should react to authoritarian challenge to the rule of law. Conceptually, it analyzes the Court’s case law concerning both Turkey’s resort to law to consolidate its power (rule by law) and disregard of rules, including its own, in engaging in repression and violence (lawlessness). Methodologically, it goes beyond judgments and takes a close look at inadmissibility decisions and strike-out rulings.

II Turkey under Erdoğan: Between Rule by Law and Lawlessness

An analysis of authoritarianism embedded in Turkey’s politico-juridical regime, which I have done elsewhere,Footnote ⁴⁹ is beyond the scope of this chapter. Suffice here to say that exceptional legal regimes, special criminal tribunals, and anti-terror laws have been constant during military and civilian rule in Turkey. At the same time, the current period cannot be explained by domestic historical continuities alone. The particularity of the AKP rule stems from the quick succession, and at times overlap, of unprecedented EU-induced rule-of-law reforms with rule by law and, more recently, lawlessness – the timing, duration, and intensity of which were closely related to the fluctuations of Turkey’s relations with European institutions. What renders the AKP rule striking is Erdoğan’s ability to pull this off at a time when Turkey was enjoying the deepest integration with human rights and rule-of-law TLOs in its history.

III The ECtHR’s Dual Role in Authoritarian Rule

Certainly, the ECtHR has enabled domestic groups to make rights claims and empowered victims in their pursuit of justice across Europe.Footnote ⁹⁸ And yet, in the last two decades, the Strasbourg Court has had a dual impact on human rights, democracy, and the rule of law in Turkey – an impact that has increasingly tilted on the negative side. The rest of this chapter focuses on the dark side of this dual role.

IV The Authoritarian Threat to the Rule of Law

The Turkish case confirms the overall theme of this volume: while authoritarians make increasing use of rule-of-law norms and practices, they do so to consolidate their power and not to pursue rule-of-law goals. At the same time, it illustrates the need for broadening our conceptualizations of the rule of law to account for the “enmeshment” of national and international law in authoritarian contexts.Footnote ¹⁵² This is necessary in two respects.

First, if the rule of law is at one end of the analytical spectrum on the arbitrary exercise of power, what lies at the other end is lawless rule, not rule by law. Certainly, lawlessness is not inevitable. Whether, and if so when, countries end up in this situation hinges on endogenous and exogenous factors. The longer and deeper a country has been ruled by authoritarian legalism, the more likely it will revert to lawlessness. It is essential to see the gray areas along this continuum, where different conceptual categories can coexist and vary across time and space. One would be hard-pressed to find examples where the entirety of a country is governed through the rule by law at all times. Rather, governance can fall across different dimensions over time depending on the strength of internal and external liberal forces. There may be “rule-of-law pockets to rule by law”Footnote ¹⁵³ or, by extension, rule-by-law pockets to lawlessness. As far as authoritarian regimes are concerned, the longer and deeper they are subject to viable external pressure for democratic change, the better their chances are to move toward the rule-of-law end of the continuum. Regime survival is another factor; when autocrats feel secure in their seats, they may be more willing to adopt rule-of-law reforms to provide some space for the expression and representation of dissent. Where they face a formidable domestic rival, in the form of a civil society movement on the streets or a political party on the ballot, they would have self-interest in shifting the pendulum toward lawlessness. A further factor is the decline in the moral authority, institutional strength, or bargaining power of the international community. Where they perceive weakness, hesitation, or confusion on the part of international institutions in upholding their own norms and practices, autocrats do not shy from abusing their bargaining positions to undermine the global security, legal, and economic order. Thus, where a country falls on the arbitrary-exercise-of-power spectrum varies across time in accordance with internal and external push and pull factors.

TLO theory underscores the recursive interaction of domestic and international levels. Indeed, Turkey’s swings along the pendulum were shaped by (1) the ups and downs of its EU accession process; (2) its engagement with the ECtHR; (3) actual (HDP and the Gülen movement) and perceived (Gezi protestsFootnote ¹⁵⁴) internal threats to Erdoğan’s authoritarian rule; and (4) broader geopolitical developments (the end of the Cold War, migration crisis in Europe, and Russia’s invasion of Ukraine). Turkey came closest to its democratic transition moment between 2002 and the middle of that decade, when the EU accession carrot was most viable, Erdoğan’s AKP desperately needed the support of the international order, and the ECtHR’s docket was not yet experiencing the adverse impact of post-Cold War enlargement. This progress toward the rule of law was the direct outcome of TLOs’ conversation with, responsiveness to, and support for, domestic civil society groups, amplifying their voices and giving them an international platform to experience their grievances. Adversely, when the EU and the CoE were grappling with the institutional overload caused by their eastward enlargements, causing the former to effectively end Turkey’s accession prospects and the latter to adopt radical reforms to ease the ECtHR’s workload, and Erdoğan was enjoying international endorsement as the reform-minded leader of the new Turkey, the pendulum started to quickly shift toward rule by law. The diminished international support for human rights activists and victims, such as the ECtHR’s inadmissibility decisions and strike-out rulings, helped Erdoğan consolidate his power. By the 2010s, the EU was distracted by internal (rule-of-law backsliding in new member states) and external (uncontrolled mass migration from conflict zones and poor countries) crises, the ECtHR was institutionally paralyzed with an unmanageable docket, and Erdoğan’s one-man rule was under increasing threat by external (the Arab Spring) and internal (the HDP appealing to non-Kurdish liberal votes and the AKP falling out with Gülenists) developments. For Erdoğan, the longevity of his power lay not in rule-of law-reforms, but in combining rule by law (replacing the ECtHR’s oversight with that of captured domestic courts) with lawlessness (disregarding the outcome of elections, terrorizing Kurdish towns through unlawful curfews, locking up elected Kurdish politicians, and taking over the local governance of Kurdish towns with executive fiat). By the 2020s, internal (a failed coup against the AKP) and external (the global rise of illiberalism and Russia’s and China’s growing threats to the international order) dynamics had emboldened Erdoğan to rule by lawlessness. This time, his disregard of rules extended to foreign policy by blocking Sweden’s (and initially Finland’s) NATO accession and thus undermining European security amidst the growing Russian threat. Erdoğan was mirroring Hungary’s Orban (who has been obstructing EU efforts to sanction Russia) in abusing his veto powers within an international organization for his domestic political purposes.

Second, the arbitrary-exercise-of-power spectrum applies not only to governments interacting with TLOs but also to those orders themselves. As Shaffer and Sandholtz point out, the rule of law and democracy are interdependent; we can only speak of the rule of law if the substance of rules is determined by democratic participation.Footnote ¹⁵⁵ As substantively antidemocratic as it is, Turkey’s electoral threshold does not even meet the basic procedural requirements of democracy; it was introduced by a military regime. Yet, European institutions have not problematized this democratic deficit, which has enabled the AKP’s single-party rule for a long time. The embrace of a thin notion of democracy and the rule of law has also permeated the ECtHR’s jurisprudence on Turkey. In a striking factual mistake, the ECtHR treated the threshold as the “choice of the legislature” and granted Turkey the wide margin of appreciation it affords member states on electoral issues.Footnote ¹⁵⁶ Just as the election system that enabled and sustained Erdogan’s single-party rule lacked minimal procedural safeguards, so did the referendum that changed the regime type to a presidential system. The amendments were adopted by the parliament, where the detained HDP deputies were not allowed to participate, and submitted to a referendum conducted under emergency rule. Yet, the international community recognized the referendum results without question.

According to Shaffer and Sandholtz, a central reason for adopting a goal-oriented definition of the rule of law is “the risk of creating formulaic checklists based on specified, formal characteristics.”Footnote ¹⁵⁷ The performance of European institutions pursuant to this conceptualization does not hold either. Take the constitutional complaint mechanism, treated by the EU and the CoE as a sine qua non for the rule of law. Neither Brussels nor Strasbourg considered whether the AYM, which has long been complicit with authoritarianism in Turkey, would be able and willing to conduct a rights-oriented review in accordance with European human norms.

Nor does the ECtHR withstand the arbitrariness scrutiny developed by Shaffer, Sandholtz, and Krygier. It has been striking out cases from its list where applicants did not accept Turkey’s unilateral declarations and pressuring applicants to accept the government’s settlement offers. These policies, resulting from a self-interest to eliminate as many cases as possible, went against the right of individual petition – the core of the European human rights regime. Similarly, in rejecting justiciable claims concerning gross violations on grounds of an ineffective domestic remedy, the ECtHR has denied victims their only chance for a day in court. Nor has the ECtHR met the requirements for “reason-giving”; it has given either no reason, since it is not required to do so in inadmissibility decisions, or an unjustifiable one. The pursuit of subsidiarity is not proportionate to the rejection of tens of thousands of applicants due to their nonexhaustion of a domestic remedy that has proven to be ineffective.

As Ginsburg notes, liberal democracy “can be promoted, defended or undermined by international legal institutions.”Footnote ¹⁵⁸ The ECHR system has not only failed to defend, but has undermined, liberal democracy in Turkey at critical points. It is difficult to make a counter-factual argument as to whether Erdoğan would have complied with an ECtHR judgment against Turkey’s electoral threshold. Coming at a time when Erdoğan still needed European support to consolidate his power against the military, such a ruling could have pushed for rule-of-law reform. At the very least, it would have drawn international attention to the antidemocratic nature of Turkey’s electoral regime and undermined Erdoğan’s claim to majoritarian democracy. Similarly, had the CoE’s Committee of Ministers started infringement proceedings for nonexecution of the ECtHR’s Demirtaş judgment and moved expeditiously thereafter toward suspending Turkey for its noncompliance, it could have forced Erdoğan to change course by, for example, releasing Kurdish parliamentarians held in captivity. At the very least, it would have drawn international attention to the antidemocratic nature of Turkey’s electoral regime and undermined Erdoğan’s claim to majoritarian democracy. Even if such an outcome did not materialize, the ECHR regime would have demonstrated commitment to its principles in relation to authoritarian regimes. This, in itself, would have been a remarkable outcome, particularly in light of the proven failure of restraint and appeasement policies in taming antiliberal governments.

I Introduction

Recent debates on public law have been analyzing developments that were difficult to imagine two decades ago, when democratic constitutionalism was expanding and reigned undisputed at the level of normative ideals. As the literature has underscored, the world has been a pasture for leaders that engage in anti-pluralist, polarizing, illiberal politics in recent years. On the basis of often massive electoral victories, populist politicians deploy policies that are against migration, globalization, environmental sustainability, and equality. They pose a distinctive challenge to democracy because, far from denouncing democratic rule, they claim to represent a more perfect instantiation of it. They pose a distinctive challenge to constitutionalism because, in contrast to the authoritarian leaders of the past, they do not set aside constitutions but rather use – and abuse – them, gradually emptying them of their substance. They pose a distinctive challenge to the rule of law because they extensively draw on legal means to advance their policies. They practice government per lege in an effort to mask performances ever more distant from government sub lege.

Latin America partakes in these familiar trends challenging the rule of law. We find paradigmatic examples in Brazil, El Salvador, and Mexico. In Brazil, Jair Bolsonaro was elected on an “anti-politics” platform that openly advocated hatred against indigenous populations, Afro-Brazilians, and civil society organizations.Footnote ¹ His government brought together military officers, neoliberal tycoons, and religious activists; despite scarce support for his policies in Congress and significant judicial drawbacks, he partly advanced his agenda.Footnote ² Mimicking Donald Trump, Bolsonaro spent months aggressively attacking the electoral authorities, proclaiming that he would not accept the results of the November 2022 election (which he lost), and urging the army and his supporters to resist the results – something they actually did, blocking the roads in many parts of the country and mounting a physical assault on Congress and the Supreme Court.Footnote ³

In El Salvador, Nayib Bukele similarly gained office by portraying himself as the alternative to traditional corrupt political parties, using new styles of political communication and promising to meet effectively the needs of the population.Footnote ⁴ His administration has been marked by gross abuse of the state of exception, nullification of presidential term limits, destruction of judicial independence, and plain irrationality – including its decision to make Bitcoin legal tender and undertake investments in this cryptocurrency that have been ruinous for the country.Footnote ⁵

In Mexico, Andrés Manuel López Obrador (popularly known as AMLO) ran on a leftist platform, only to deploy, once in office, policies contrary to progressivism: militarization, anti-migration, efforts to control the judiciary and eliminate independent agencies, defunding of public services, strict fiscal policy, and daily broadcast attacks on all sectors of society, including feminists, academics, scientists, the press, and civil society organizations.Footnote ⁶ His policies are far from not only progressive liberal democratic politics but also left-wing populism as practiced in the past in Latin America by leaders such as Juan Domingo Perón or Getulio Vargas. Although authoritarian, such populism was state-friendly and inclusive of industrial workers and popular masses, unlike the state-shrinking drive and almost exclusive reliance on cash transfers (as opposed to structural redistribution) that marked López Obrador’s policies.Footnote ⁷

A focus on Latin America, however, invites us to unsettle and refine prevailing narratives of constitutional retrogression. In Latin America, many of the current trends are not unprecedented. The region has long dealt with challenges to the “constitutional trinity” of human rights, democracy, and the rule of law,Footnote ⁸ including problems that derive not from direct violations but from abuse and covert undermining of these goals. Sure, these problems were until recently framed as temporary problems, to be overcome through the process of progressive consolidation of democracy – a linear, happy-ending frame – whereas now, in parallel to challenges elsewhere, they are portrayed as chapters in a narrative of retrogression running in the opposite direction. Nonetheless, as a result of Latin America’s long-standing familiarity with these challenges, regional constitutions include a wealth of innovations intended to counter them. While countries that perceive themselves as mature democracies are wondering what sort of reforms could help contain or reverse current developments, in Latin America those reforms have already been attempted, and the relevant contemporary agenda is therefore to inquire what has worked, and what has not, and why.

This chapter’s aim is to introduce and further invite assessments of whether the institutional solutions typically embraced by contemporary Latin American constitutions make a difference in fighting contemporary patterns of rule-of-law violations and what sort of difference they make.

The chapter advances the preliminary hypothesis that Latin American last-wave constitutions make a positive difference. Many features of constitutional design are arguably helping to sustain democracy and the rule of law in the region in times of authoritarian, neopopulist onslaught, setting the ground for the middle-term reinvigoration of democracies and rule-of-law guarantees. The analysis suggests, however, that these features help fight erosion in a relatively ineffective way because most of them are reactive, ex post defenses, and overcharge the judiciary. A more effective, systemic prevention of rule-of-law erosion would require the design or reinforcement of preemptive solutions, both in the domain of rights and in the domain of the organization of powers.Footnote ⁹

There are grounds for confirming this hypothesis in various countries – such as Brazil, Ecuador, Colombia, or Bolivia – where periods of hyperpresidential rule have been reversed. The focus of this chapter, however, will be exclusively on Mexico, in order to more fully ground the analysis. Among the many patterns of rule-of-law undermining currently underway, this chapter concentrates on two episodes and the reactions to them on the basis of Mexico’s Constitution—the onslaught against the National Electoral Institute as the arbiter of electoral fairness and the enhancement of the military’s role in society, particularly in relation to public security and the economy.

In pursuing this analysis, the chapter first recalls historic trends with regard to democracy and the rule of law in Latin America. Second, it provides an overview of the standard institutional tools contained in Latin American constitutions that can be put at the service of the rule of law and other normative ideals. Third, it describes rule-of-law undermining patterns that illustrate the current situation in Mexico and explores how the Constitution is used to resist them. Throughout, the chapter draws inspiration from Shaffer and Sandholtz’s five-dimensional conception of the rule of law, which assesses whether (1) power is ex ante subject to limits and accountability mechanisms; (2) individuals have a degree of predictability as to how power is exercised; (3) individuals can question and respond to the exercise of power; (4) authorities engage in reason-giving; and (5) there is proportionality in a set of distinct state responses.Footnote ¹⁰ These dimensions provide a background grammar for assessing current challenges and the strengths and weaknesses of available constitutional responses.

II The Long Quest for the Rule of Law in Latin America

In the countries that experienced the “third wave of democratization” – those in Latin America and Central and Eastern Europe – constitutional democracy has a contorted history. The first Latin American constitutions were passed in the early years of the nineteenth century, after independence revolutions similar to those that had taken place shortly before in the United States and France. As Roberto Gargarella has observed, these first regional constitutions alternate or combine designs that embody three distinct understandings of individual autonomy and collective self-rule – liberal, conservative, and radical.Footnote ¹¹ The second half of the nineteenth century saw the stabilization of a “constitutionalism of fusion” based on a long-lasting liberal-conservative pact. This pact supported checks and balances, but it tilted in favor of executive power; federal states with very strong centers; religious tolerance, though without depriving the Catholic Church of its privileges; and bills of individual rights, without any social precommitments, at a time of increasing social unrest.Footnote ¹²

While for some time constitutions embraced French-inspired systems of political review of legislation, in the second half of the nineteenth century most countries established systems of decentralized judicial review allowing for the nonapplication of statutes in individual cases – with additions, like the amparo writ in Mexico or certain modalities of abstract review in Colombia and Venezuela. The hybrid legal traditions of Latin America thus progressively developed, with bodies of civil, criminal, commercial, and procedural law codified and applied within structures typical of the civil law tradition, and constitutions featuring presidentialism, federalism, and decentralized review, much in the style of the United States.Footnote ¹³

However, as in other countries, constitutions had long been operating more as political documents than as legally enforceable ones. The historical dockets of Latin American supreme courts contained some important constitutional cases, but law enforcement consisted for the most part in enforcing codified legislation. Constitutional rule was seriously compromised in most countries through abuse in the form of emergency states, civil wars, and military coups.Footnote ¹⁴ As reflected in popular sayings, academic literature, and literary works, overt or covert noncompliance with the law has been widespread and often normalized in Latin America.Footnote ¹⁵ As García Villegas remarks, for some, these attitudes can be ultimately traced back to colonial times, during which the formula se acata pero no se cumple (complied with but not fulfilled) served as a means to adapt the law that came from the Iberian peninsula to the very different conditions of the colonies; others associate it with the influence of iusnaturalism, which makes the validity of the law conditional on its moral weight – an attitude similar to the perspective of those who find no reason to obey the law under conditions of gross socioeconomic injustice, where the state is authoritarian or itself disobeys the law.Footnote ¹⁶ Constitutions and laws were, therefore, not irrelevant, but existed in a medium where flexibility and negotiation were common, in constant interaction with rules of other sorts.

In the twentieth century, a diversified political and constitutional setting coexisted with widespread ambivalence about the cause of liberal democracy.Footnote ¹⁷ As Javier Couso has explained, until the decades of the 1970s and 1980s, both the Right and the Left in Latin America held constitutional democracy in considerable disdain.Footnote ¹⁸ For the Left, highly influenced by Marxism and the Cuban Revolution, little was to be gained from the establishment of liberal constitutions and political democracy unaccompanied by economic transformation:Footnote ¹⁹ constitutional limits on democratically elected governments – such as the right to property – were benefits for the conservatives.Footnote ²⁰ For the latter, in turn, “order and progress,” and a concern for the preservation of public and national security, were always paramount, which often translated into support for military coups and strong presidents.Footnote ²¹

III Contemporary Latin American Constitutionalism and the Exercise of Power

Everything changed in the 1980s and 1990s. Couso remarks that, at that time, both the Left and the Right changed their views on liberal democracy and the rule of law. In the case of the Left, the atrocities suffered at the hands of the military dictatorships led to an appreciation of legal institutions such as habeas corpus and due process guarantees.Footnote ²² In the case of the Right, free-market ideology was important; from the 1980s onward, the idea that the rule of law, well-defined property rights, judicial independence, and effective state apparatuses were indispensable for economic growth became central to Latin American conservatism.Footnote ²³

In this environment, emerging from different circumstances but all in need of relegitimation, the countries of the region underwent a wave of political transformation, regularly accompanied by the making of new constitutions (Brazil in 1988, Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994, Venezuela in 1999, Bolivia in 1994 and 2009, Ecuador in 1998 and 2008) or the reform of existing ones (Costa Rica in 1989, and Mexico on many occasions over the last three decades).

The new and reformed Latin American constitutions have a significant collection of common traits and generally evince a commitment to organize the exercise of power within new parameters. While commentators have pointed out that the degree of innovation in the domain of power structures is smaller than what we find in declarations of rights – to the detriment of the underlying transformative project – historical designs have not survived untouched.Footnote ²⁴

A first area of (modest) innovation implicating power structures is the regulation of the relations between the executive and legislative branches: all countries retain a presidential system of government, but adjustments have been made to reinforce the legislative branch, and many executive attributions have been transferred to independent agencies and fourth-branch institutions.Footnote ²⁵ Moreover, constitutions introduce mechanisms of direct or participatory democracy (popular consultation, presidential recall, popular legislative initiative, and sometimes participatory budgeting).Footnote ²⁶ A second area where more robust changes have occurred is the design of the judiciary, which now enjoys a system of self-government under Judiciary Councils; a broad menu of responsibilities that diversifies citizens’ channels for accessing justice; and, in some countries, an architecture that features several apex courts, including electoral courts.Footnote ²⁷ The granting of constitutional status to international human rights, moreover, gives the doctrines of the Inter-American Court of Human Rights (IACtHR) a permanent role in day-to-day constitutional dynamics within Latin American countries, implicating rule-of-law practices.

Innovation is even greater when it comes to fundamental rights. In his portrayal of last-wave regional constitutions, Rodrigo Uprimny identifies ten major changes: redefinition of national unity, replacing traditional homogenization drives with recognition of diversity and the foundational status of indigenous peoples; elimination of the residues of religious establishment and guarantee of religious freedom; protection of disadvantaged and discriminated groups, including indigenous and black communities, which are often granted special rights or jurisdiction; generous recognition of rights, including social rights, and new categories of rights-holders, like nature, groups, or communities; great openness to international human rights law, which often operates as a block in conjunction with the constitution; transformation of the system of legal sources, resulting in statutory law now coexisting with other sources of normativity; strong commitment to equality, including affirmative action; introduction of umbrella clauses that synthesize the foundations of the constitutional project, like the “Social and Democratic State” clause or varieties that go beyond European postwar models; inclusion of principles and tools that evince deep concern for the efficacy of rights; and references to the economy, even if heterogenous and irreducible to a single message.Footnote ²⁸

IV Undermining of the Rule of Law in Contemporary Mexico

The fact that democracy has for three decades remained the only road to political and legal authority in Latin America is in itself an immense, historic watershed.Footnote ²⁹ In general, civil society has been revitalized, there is widespread public recognition of social and cultural pluralism, and the constitutionalism of rights has given the law a centrality it had never enjoyed before in the region.Footnote ³⁰ There has been an abundance of developments around new vindications (social rights, equality, environmental, and indigenous rights), which have supported new forms of adjudication, including structural rulings, innovative remedial practices, and continuous interaction between national courts and the IACtHR.Footnote ³¹ Political dynamics have embraced a wider assortment of legitimate social claims, often outside the frame of traditional party politics.Footnote ³²

However, numerous problems remain. In recent times, the persistence of unacceptable levels of inequality,Footnote ³³ public and private violence,Footnote ³⁴ inappropriate coverage of basic needs,Footnote ³⁵ and the ineffectiveness and corruption of many institutions have eroded the status that constitutional democracy and the rule of law had gained in the region.Footnote ³⁶ New political trends have developed in response. The political projects of presidents Rafael Correa in Ecuador (2007–17) and Evo Morales in Bolivia (2006–19) had an egalitarian thrust along with the strong personalism that dominated their administrations. The political projects of presidents Bolsonaro in Brazil and Nayib Bukele in El Salvador, by contrast, cater to the worst instincts of electorates that are now prepared to support an anti-politics style and policies that sacrifice liberties and the rule of law for the benefit of security as an act of revenge against the so-called traditional political class.

What these projects all have in common is the expansion of presidential powers, and the consequent distaste for constitutionalism understood as the ideal of limited government and protection of the rule of law. While they do not reject the constitution per se, since upholding a permanent electoral style is crucial to them, they relativize the division of powers, the idea that the rulers must strictly abide by the rules that define the contours of their powers, and the idea that government must give appropriate reasons for actions – all of which are central to the rule of law. Because of their style of governance, which pits groups of people against each other, these administrations erode respect for pluralism and civil liberties. Because of their personalistic quest for concentrating power, they undermine the rule of law.

In what follows, this chapter focuses on some of the developments underway in Mexico, which provide a paradigmatic illustration of such neo-authoritarian dynamics. Mexico has traced a singular path of constitutional evolution. It transitioned to democracy while maintaining its 1917 Constitution, which has nonetheless undergone more than 800 amendments, especially from the 1990s onward. While the Mexican patterns of accelerated reform pose important problems, they have also brought the country in line with the common features of contemporary constitutionalism in the region.Footnote ³⁷ Thus, Mexico has a generous declaration of rights, which includes international human rights and enforceable social rights; a sophisticated model of division of powers, with an assortment of fourth-branch institutions; emphatic constitutional recognition of indigenous nations and a model of moderate legal pluralism; channels of participatory democracy; and a reinforced judicial branch, even if the traditional amparo complaint procedure is hardly sufficient in ensuring equal access to justice for all.

Within this framework, Mexico has held indisputably reliable elections.Footnote ³⁸ Yet, important wider problems persist. They include massive deadly violence, which, following state responses to drug trafficking, has increased dramatically since the presidency of Felipe Calderón, who launched a “war against drugs” at incalculable human, political, and legal cost – a policy that has been continued, with less energy, by his successors.Footnote ³⁹ Other problems include a problematic Gini coefficient; a vitiated political class; very weak provision of public services; and patterns of judicialization that, despite being progressive, do not benefit the majority of the population.

Against this background, in the 2018 election Mexicans gave the presidential seat to Andrés Manuel López Obrador, an old-style politician who was once a member of the Partido Revolucionario Institucional (PRI) and held office as mayor of Mexico City at the turn of the century. He ran twice for the presidency (in 2006 and 2012) under the party that he founded after leaving the PRI (named MORENA). He finally won by a massive vote in 2018, supported by millions who, fed up with the frustrations of standard politics, gave their confidence to the only candidate that seemed to promise real change. In the campaign, he famously promised “abrazos, no balazos” (hugs, not bullets), which sounded like a commitment to find a durable solution to the problem of violence in the country.Footnote ⁴⁰

On gaining office, however, López Obrador took a completely different route. He has applied a strictly populist rulebook and has deployed a large number of reforms that are at odds with progressive politics. His policies and daily gestures are problematic for fundamental rights and respect for the rule of law.

President López Obrador’s distaste for pluralism is visible in his continuous criticisms of civil society organizations, scholars, scientists, journalists, lawyers, judges, feminists, and even the entire middle class (whom he disparages as selfish and “aspirationist”).Footnote ⁴¹ His daily morning shows (las mañaneras) are an occasion to name and shame an unending succession of individuals and groups. The promotion of an insurmountable divide between “them” and “us” – between “our enemies,” “the conservatives,” “the corrupts,” on the one hand, and “the people,” on the other – is explicit and repeated incessantly every day.Footnote ⁴² These attacks have not remained at the level of words but have been accompanied by police reform. The public research centers that were not legally autonomous, for instance, have lost their main sources of funding and have seen partisan individuals appointed as directors.Footnote ⁴³ The National Research Council has suppressed several scholarship programs,Footnote ⁴⁴ cut research stimulus to private university researchers, reformed applicable regulations several times, and denounced scientists on criminal grounds merely for being critical.Footnote ⁴⁵ Civil society organizations, for their part, have endured a reform in their accounting duties that makes it extremely difficult for them to receive donations and other sources of funding on which they are heavily dependent.Footnote ⁴⁶

In addition, AMLO has pursued a policy of radically shrinking state capacities, with serious consequences in several domains, most notably health and education. Under the banner of austerity, the president has cut back on the funding of research and science, educational programs, health and daycare, and ordinary expenses throughout the entire administration, leaving many departments without the means to fulfill their basic responsibilities and generally nurturing state arbitrariness.Footnote ⁴⁷ In the domain of health, the creation of the INSABI (Instituto de Salud para el Bienestar) to replace the Seguro Popular (a program for which people outside the other social security subsystems could self-enroll) did not succeed, leaving millions without coverage.Footnote ⁴⁸ The president decided to rescind existing contracts with pharmaceutical suppliers, yet the inability to secure new ones left the health system in a state of chronic shortage of medicines.Footnote ⁴⁹ The conflict this caused with the parents of children suffering from cancer, who were left without medicines, is only one visible manifestation of the seriousness of the situation.Footnote ⁵⁰ In the field of education, the devastating effects of the pandemics were not addressed, twenty-two programs have been suppressed,Footnote ⁵¹ and the education secretary has been placed under the direction of two people with no expertise.Footnote ⁵²

True, the president has raised the minimum salary and expanded cash transfer programs – approximately 30 percent of the population receive some kind of direct, nonconditional cash benefit.Footnote ⁵³ Aside from these transfers, however, and the ever-growing sums assigned to the army,Footnote ⁵⁴ an immense amount of public funds go to Pemex and other projects associated with fossil fuel (like the construction of a refinery in Dos Bocas and the acquisition of another one in Texas) and to flagship works of infrastructure like the Maya Train (traversing ecosystems of great environmental value) or the Felipe Ángeles Airport, not to mention the cancellation of the already half-built Texcoco Airport at a cost of close to USD 5,700 million.Footnote ⁵⁵ Under his administration poverty has stabilized,Footnote ⁵⁶ despite a context of relative economic normalcy: the country accumulates gains from nearshoring; the money transfers sent by the US Mexican diaspora have grown; and the currency has not depreciated, thanks to the orthodox monetary policy followed by the government.Footnote ⁵⁷

Overall, AMLO’s challenges to the rule of law are numerous, as the following two sections illustrate. The president has repeatedly expressed a deep distaste for all things legal. He has portrayed the law as an instrument of the ancien régime and legal requirements as hurdles in the way of attaining the “Fourth Transformation of Mexico.”Footnote ⁵⁸ A painful, paradigmatic illustration of this approach to the law is the executive decree that declared public works of infrastructure (such as the construction of the Maya Train) to be “national security” issues, obliging all administrative units to issue the corresponding permits notwithstanding any statutory norm to the contrary.Footnote ⁵⁹

An abundance of developments reveal tensions along the five dimensions that Shaffer and Sandholtz identify as defining a goal-oriented understanding of the rule of law. To illustrate some of them, this chapter focuses on two clusters of developments. The first is the frontal attack on the National Electoral Institute, the independent agency that remains the key guarantor of electoral regularity. The second is the militarization of state functions – first, public security, and later a much wider set of state responsibilities, including the provisions of public services and the construction of public works.

All of them reveal a willingness to eliminate checks and balances; a general disregard for the idea of reason-giving; a decline in the predictability of public action since many measures are processed speedily (with or without the intervention of a dominated legislature), often in open violation of legal requirements. As in other situations of autocratic legalism, the pattern is gradual, with the overall impact being greater than the sum of its parts. Intertwined with that pattern, however, is degree of legal contestation that has no precedent in Mexico. In the face of inaction on the part of the political opposition, many agents are using instruments and spaces that were unavailable in previous historical instantiations of rule-of-law disregard.

V The Quest against Electoral Reliability

The construction of a strong independent authority capable of organizing clean elections and the reform of the electoral system based on administrative rule of law was the keystone of the Mexican transition.Footnote ⁶⁰ The country was not emerging from a military dictatorship and it had never formally abolished elections. However, under the political system progressively installed by the PRI, elections were rigged and won by the person designated by the president. The PRI was to a certain extent inclusive of various social groups and provided a system of elite rotation.Footnote ⁶¹ It also provided peace and stability in a country that had endured significant turmoil during the nineteenth century.Footnote ⁶² But it was not a democracy: there were formal elections, but no actual rule-of-law preconditions to ensure free voting and political competition.

When it ultimately became impossible to maintain the system without changes, several constitutional reforms introduced electoral competition and progressively built independent electoral authorities.Footnote ⁶³ An institution called IFE (Instituto Federal Electoral) was created in 1990, together with parallel institutions at state level. In 1996, the IFE gained complete independence from the executive, and in 2013 a constitutional reform renamed the institution INE (Instituto Nacional Electoral) and gave it more powers over the organization and monitoring of elections at state level. The institution soon established itself as one marked by professionalization (its employees are career officials) and a model of election organization and supervision that included extensive input from the citizenry and was grounded in administrative rule of law. Thus, the voting booths in Mexico are managed by citizens who are selected on the basis of their birth month, trained before the elections by the INE, and who count the votes and make the results public before taking them personally to the INE offices. The INE General Council’s members do not need to be lawyers.

The INE is a huge institution responsible for many tasks: it issues voter ID; it organizes the elections and trains the citizens who run the voting and do the counting; it reviews whether candidates satisfy the conditions of eligibility and monitors observance of legal requirements concerning access to and use of funding and access to mass media space and time during campaigns and precampaigns; and it supervises certain aspects of political party life outside electoral processes.

Despite winning 53.19 percent of the vote in an election that, by all accounts, was impeccable, AMLO soon leveled fierce criticism at the INE – initially, as part of a broader campaign against all independent agencies as well as the judiciary. The attacks on INE, however, continued to grow and, over time, reached astounding levels. (The 2006 election had been narrowly won by Felipe Calderón, and from that moment AMLO became disillusioned with the INE, despite the great credibility of the system and the political alternation in the presidency.) One of the more worrying episodes occurred in April 2021, when the INE, applying existing law, cancelled the candidacy of Félix Salgado Macedonio in the Guerrero gubernatorial election because he failed to report on his precampaign expenditures (paid in Mexico with public money).Footnote ⁶⁴ Salgado then mounted a demonstration in front of the INE, which included the presentation of a huge coffin and the issuing of assassination threats against the INE president; threats were also made against INE counsellors, whose home addresses Salgado urged his followers to locate. Salgado (who had also been denounced for several instances of sexual abuse) was the candidate AMLO wanted to win in Guerrero, and the president did not abandon him. He rather defended Salgado, saying that the INE should have imposed a fine but not prevented him from running.Footnote ⁶⁵ In the end, MORENA selected the daughter of Salgado Macedonio as the candidate – and she won the election. The incident gave the impression that the president was happy to validate the most egregious attacks on institutions (and persons) if there were political gains in return, in violation of basic rule-of-law norms.

In November 2021, the MORENA-controlled Congress approved the budget for the year 2022, and it did not assign to INE the funds that it had precalculated. In particular, the INE was not given the funds necessary to organize the presidential recall consultation that the president had already scheduled for August 2022 to forecast his popular support. The INE then filed two constitutional claims before the Supreme Court: one to protect its counselors from incurring administrative or criminal liability if they organized the recall in disregard of legal parameters for lack of money to comply with them; and the other denouncing the unconstitutionality of the budgetary cut.Footnote ⁶⁶ In February 3, 2022, the Supreme Court declared that the INE could and should organize the presidential recall as best it could with existing funds and the reduced budget passed by Congress,Footnote ⁶⁷ and on June 1, 2022, it declared the budget cut to be invalid.Footnote ⁶⁸

At the time, President López Obrador had already decided to submit the proposal of a constitutional amendment to change the existing architecture of the electoral system. The reform proposed five main changes: the transformation of INE into a National Institute of Consultations and Elections, headed by counselors elected by popular vote from candidates selected by Congress, the executive, and the Supreme Court; a reduction in the amount of public funds received by political parties; electronic voting; a reduction in the number of members of Congress, state legislatures, and municipal councils; and changes in the size of the electoral districts for the election of deputies by proportional representation.Footnote ⁶⁹ While some of these changes were reasonable and not particularly dangerous in rule-of-law terms, they were packaged with the first proposal, the risks of which unbalanced any other potential gains. The proposal to elect counselors by popular vote would have allowed the government to remove all existing counselors and bring ordinary party politics into an institution that should operate as a neutral electoral arbiter. It would have generated an “adverse selection” effect, in view of the trouble associated with the need to launch a political campaign to be an electoral counselor, after being included on a short list largely rigged by the executive (given its control of the legislative branch, and its unpredictable future influence on the Supreme Court).Footnote ⁷⁰

In November 2022, this reform was discussed in Congress against a background of high political contestation. A popular demonstration in support of the INE, called by a heterogenous assembly of civil society groups, took place on November 13, and its success surpassed everyone’s expectations. The streets of Mexico City around the Monument to the Revolution and Reform Avenue were filled by an organized throng of thousands of families and groups of citizens, and the same occurred in the main cities outside the capital.Footnote ⁷¹ A few days before, the president had asked his followers to “allow” the demonstration, while qualifying those planning to attend as “racist” and “classist.”Footnote ⁷² The day after the march, clearly upset, he summoned his followers to attend a “response” demonstration on November 27 “to celebrate the gains of four years of Transformation” – which also was a success.Footnote ⁷³

The constitutional reform did not pass, however. Having lost the capacity to amend the constitution alone after the results of the intermediate 2021 election, MORENA was unable to secure the necessary support by negotiating with the other political parties, which felt the pressure of the popular march.Footnote ⁷⁴ A few days later, however, on December 13, 2022, with the holiday season about to start, the president made a surprising move and submitted to Congress the so-called Plan B electoral reform. This contained a proposal to amend six statutes (something MORENA could do by a simple majority vote). At its core, it involved a radical shrinking and weakening of INE as an institution, to the point of compromising its ability to organize and supervise elections under the rule of law.Footnote ⁷⁵

Several parts of the project are perfectly acceptable, even to be welcomed, such as the overdue guarantee of the right for people in prison to vote, the regulation of online trials, the simplification of complaint procedures, the need to implement gender parity in elections for state governors, and the restructuring of the calendar for federal and state elections. Yet other proposals are sensitive, and some deeply troubling. In this last category are the elimination of the rule that had so far prevented individuals holding public office (and in receipt of a salary paid with public money) from engaging in political advocacy in electoral campaigns; the elimination of the INE administrative apparatus across the country, endangering electoral IDs and the training of citizens who serve on election day; the reorganization of the INE’s internal units, with the immediate removal of the executive secretary, the dissolution of the trusts guaranteeing the salaries of INE employees (which would now depend on annual budgetary allocations); and the provision (tailored to “save” a future Salgado Macedonio) that being sanctioned by the INE for violating electoral law is no impediment to run for elections (only a criminal conviction is).

Plan B was published in two steps. After the publication of a first package, more than one hundred constitutional controversias were filed by municipalities, which maintained that their powers of self-organization were curtailed, and by actors, who argued that the reform affected electoral processes already underway, thus disregarding the prohibition on making amendments to electoral rules in the ninety days preceding an election.Footnote ⁷⁶ Before the publication of the remaining package of reforms, civil society organizations summoned a new march in defense of the vote on February 26, 2023, with great success. This time, people gathered at the Zócalo, the tectonic power center in Mexico, and available estimates put the attendance in Mexico City and other cities across the country at approximately 700,000.Footnote ⁷⁷

On March 4, 2023, however, the second package of Plan B was published. A few days later, the INE filed two controversias against the reform and two groups of Congress members filed acciones de inconstitucionalidad.Footnote ⁷⁸ As the demonstrators in the February march made clear through their banners and chants, protection of democracy and the rule of law would depend on the Supreme Court.

AMLO has striven to undermine the Court using all means. He has taken advantage of the opportunity to appoint four justices, two of whom are unconditional supporters, while the other two have proven to be fairly independent. Yet, for a statute to be declared void in abstract review in Mexico, and disappear from the books, there must be a qualified majority of eight votes – a threshold difficult to pass in any scenario, but specially so in the current climate. Further, for four years the presidency of the Court was held by Arturo Zaldívar, who was quickly criticized for cultivating an excessive closeness to the government. Under his presidency, the Court delayed decisions in many politically sensitive cases.

In the electoral domain, however, the Court’s decision-making is subject to time limits. And its performance as regards Plan B has been admirably solid, even in the face of all imaginable kinds of pressure. In admitting the cases, the Court thus precautionarily suspended the effects of the reforms,Footnote ⁷⁹ to which MORENA “responded” the next day by filing a bill of constitutional amendment for the entire judiciary to be selected by popular vote.Footnote ⁸⁰ And in May and June 2023, applying precedents developed and regularly enforced since 2005, the Court invalidated the two segments of Plan B for reasons everyone in Mexico had witnessed in the media: the flagrant disregard of the requirements safeguarding legislative procedure,Footnote ⁸¹ without any need to assess the content of the statutes. This came as a relief to many, but the government again responded by redoubling its attacks on the judges.Footnote ⁸²

VI The Militarization of Public Life and State Functions

From the 1940s and throughout the rest of the twentieth century, in contrast to the situation in other countries in the region, the Mexican army was securely subordinated to civil authorities. It was in this subordinated quality that the army was involved in the dark episodes of the “dirty war” of the 1970s.Footnote ⁸³ Yet, during the gradual transition to democracy of the 1980s and 1990s, the military was generally held in high regard by the population – which would associate it with assistance during natural disasters, among other tasks of that sort.

The situation changed when Felipe Calderón won the presidency in 2006. Some two years later, although the matter had been mentioned during his campaign, Calderón decided to launch a “war against drugs” that put the army on the streets in several parts of the country without any legal basis for doing so. In December 2017, during the presidency of Enrique Peña Nieto, and partly responding to demands from the army itself, aware of the absence of legal grounds for its street-level operations, Congress enacted the Interior Security Act (Ley de Seguridad Interior), which enabled military personnel to participate alongside the police in ordinary tasks of maintaining public security in the country’s public spaces.Footnote ⁸⁴

The national ombudsperson and several state counterparts filed challenges against the Interior Security Act before the Supreme Court, which declared it invalid in November 2018.Footnote ⁸⁵ The Court found a violation of Article 21 of the Constitution, which allowed for army participation only in tasks associated with national security; the statute wrongfully allowed for army participation in ordinary daily tasks of public security, which had to be fulfilled by ordinary political forces.Footnote ⁸⁶

By the time AMLO became president, the degree of damage caused in the country by the “war against drugs” was already incalculable.Footnote ⁸⁷ Everybody expected a change of strategy from López Obrador, who during the campaign had advocated for the massive problems of violence to be managed “with hugs, not bullets” (abrazos, no balazos). Soon after taking office, however, in March 2019, with the cooperation of the inoperative “opposition” parties, he submitted an amendment to Article 21 of the Constitution to create the National Guard.Footnote ⁸⁸ Congress approved fast-tracking this reform and four complementary statutes: the Law of the National Guard, the Law on the National Registry of Detentions, the National Law on the Use of Force, and the General Law of the Public Security System,Footnote ⁸⁹ all of them raising frontal challenges to controls over the arbitrary exercise of power under the rule of law.Footnote ⁹⁰ A month later, Article 19 of the Constitution also was reformed and the range of cases in which judges are obligated to order automatic pretrial imprisonment (an institution incompatible with standard due process guarantees) was greatly expanded.

Many in civil society, wary of the president’s militarized conception of the National Guard and knowing how lethal the army’s record was, organized the platform “Seguridad sin guerra” (security without war).Footnote ⁹¹ The great efforts they made before Congress resulted in the Constitution providing that the National Guard remains ultimately subordinated to civil authorities – specifically, the Secretary of Public Security.Footnote ⁹² However, the decree creating the National Guard included a transitory provision that few noticed at the time, allowing the army to “perform tasks of public security in an extraordinary, regulated, supervised, subordinated, and complementary manner” for a period of five years. These were the exact words that the IACtHR had used when condemning Mexico in its Alvarado Espinoza rulingFootnote ⁹³ concerning a woman whom the army forcibly abducted while deploying tasks of ordinary security. The IACtHR declared that the army’s involvement in these tasks was inadmissible; only in an extraordinary, regulated, supervised, subordinated, and complementary manner could the army be involved in them.Footnote ⁹⁴

The statutes relating to the National Guard were deeply troubling and were soon challenged before the Supreme Court by the national ombudsperson (still directed by a person appointed during the former administration).Footnote ⁹⁵ The Law on the National Guard, for instance, defines the functions of the National Guard in a most open-ended way, paving the way to clearly unconstitutional action. It empowers the National Guard to investigate ordinary crimes and to supervise and check migrant people, but fails to define torture and forced disappearance as serious crimes.Footnote ⁹⁶ The Law on the National Registry of Detentions, for its part, leaves out essential elements required by the Constitution. It does not indicate what action is to be taken when events occur that put the detentions database at risk, and it is ambiguous regarding the obligations of the army when participating in tasks of public security, since it can be interpreted to mean that the army is not subject to the constitutional obligation to immediately communicate any detention to the police and provide the information necessary for it to be properly registered, and thereby allow oversight of rule-of-law protections.Footnote ⁹⁷

The National Law on the Use of Force similarly fails to regulate the minimum elements required by the constitutional amendment that created the National Guard and fails to specify the scope of crucial notions such as fuerza epiletal. Another provision could be interpreted as authorizing deadly use force from the moment operations are planned, as opposed to being a last-resort response to an actual or imminent aggression. Moreover, the law is unclear about the possibility of using force in demonstrations; interpreted contrario sensu, it opens the door to the use of all levels and means of force, including firearms and deadly weapons, in “illicit” demonstrations – a notion that is left undefined – or demonstrations that become violent.Footnote ⁹⁸ The General Law of the Public Security System, for its part, violates the right of access to public information by authorizing total ex ante withholding of all information in the national public security information system and national registries, preventing public access to this information to defend rule-of-law guarantees.Footnote ⁹⁹

While these cases were at the Supreme Court, the army was given an ever-growing number of responsibilities: the administration of the main ports,Footnote ¹⁰⁰ the administration of customs,Footnote ¹⁰¹ and the construction of a wide range of public works, including 1,500 branch offices of Banco del Bienestar, the Maya Train and the Felipe Ángeles Airport.Footnote ¹⁰² This means that the army has immense economic power at the moment.Footnote ¹⁰³ The so-called Guacamaya leaks demonstrated the army’s ubiquity (both legal and illegal) in all areas of public life in Mexico.Footnote ¹⁰⁴ As of June 2023, the marines have been given the administration of the main Mexico City airport and the government continues negotiations to buy Mexicana de Aviación – one of Mexico’s first commercial airlines, which went into insolvency in 2010 – for it to be run by the army.Footnote ¹⁰⁵

The army manages the training of the National Guard, 75 percent of whose members are former soldiers.Footnote ¹⁰⁶ In May 2020, the president, taking advantage of the window opened by the transitory constitutional provision,Footnote ¹⁰⁷ issued an executive decree providing that the army would assist the National Guard in performing public security tasks for a period of five years. In a surreal turn, the heading of the decree (known in Mexico as Acuerdo militarista) reads: “Decree providing for the participation of the Army in public security tasks in an extraordinary, regulated, supervised, subordinated, and complementary manner.” Yet these adjectives do not appear in the body of the text; on the contrary, the text of the decree fails to place any conditions on the participation of the army,Footnote ¹⁰⁸ thus disregarding IACtHR doctrine and the fact that the Constitution’s reference to those limitations meant that they had to be observed and taken up by the legislative branch.

The Acuerdo militarista, too, was challenged before the Supreme Court. Three municipalities filed controversias denouncing infringement of jurisdiction, and the Chamber of Deputies filed another one arguing that the president had bypassed Congress in addressing the matter by way of a decree, without prior enabling legislation.Footnote ¹⁰⁹ This time, the National Commission of Human Rights, now under the direction of a close ally of the president, did not react.Footnote ¹¹⁰

To complete the circle, at the request of the president, the Law on the National Guard was amended in September 2022, so as to place its operation more fully under military command.Footnote ¹¹¹ The law was fast-tracked and, after being passed in the Chamber of Deputies without discussion by commissions, was approved by the Senate within twelve hours of receipt.Footnote ¹¹² As Estefanía Vela and Nuria Valenzuela observe, the “civil” National Guard is now an empty shell.Footnote ¹¹³ The reforms do not comply with the conditions put forward in the Constitution and entrust the SEDENA (the Secretary of National Defense) with full financial, administrative, and operative control of the National Guard.Footnote ¹¹⁴ A formal mention of the Secretary of Public Security means nothing in a detailed regulation that places the body under the leadership of a person designated by the president on the basis of criteria that only high-ranking military officers can meet, and which situates operation and infrastructure under military control.Footnote ¹¹⁵ A group of senators again challenged the law before the Supreme Court.

A Supreme Court under siege has dealt unevenly with these cases, often in a miminalist way, but also refraining from acknowledging the legitimacy of the militarist onslaught. On November 29, 2022, the Court declared the “Militarist Decree” valid on the basis of the purely formal argument that it did not contradict the literal text of the Constitution,Footnote ¹¹⁶ ignoring IACtHR decisions. Yet on April 20, 2023, on the basis of a draft prepared by one of AMLO’s appointees, the Supreme Court declared the transfer of the National Guard to the military branch invalid and ordered civilian control of this body from January 1, 2024.Footnote ¹¹⁷ Given the amount of political pressure the judges had endured – including insertions in national newspapers paid by MORENA governors requiring the Court to certify the validity of the reform – this was seen as an immense victory by the law’s opponents.

The Court also discussed the question of automatic pretrial preventive imprisonment, but there was no consensus over declaring it invalid. The fact that it features in the Constitution, and not just in statutes, posed a great problem for a Court that has never declared the unconstitutionality of a constitutional amendment. Shortly afterward, in any case, the IACtHR decided the cases Tzompaxtle Tecpile v. Mexico and García Rodríguez v. Mexico, declaring that arraigo (pretrial unsupervised house arrest by the prosecutor) and automatic preventive imprisonment were incompatible with the American Convention.Footnote ¹¹⁸ The IACtHR has directed Mexico to enact the necessary changes in national law – that is, the Constitution.Footnote ¹¹⁹ Again, this was experienced by many in civil society as an immense triumph of rights in defense of the rule of law. The day after Tzompaxtle came out, the home affairs secretary (Secretario de Gobernación), an individual close to the president and prospective candidate in the next presidential election, declared that the ruling was not to be complied with. In the buildup to the 2024 election, we will see how this saga and the many dozens of others underway unfold for the future of the rule of law in Mexico.

VII Concluding Considerations: A War of Attrition, and the Difference the Constitution Makes

This chapter’s account, while providing overwhelming evidence of challenges to the rule of law in Mexico, is based on only a few paradigmatic examples of current dynamics. The AMLO administration in Mexico viewed basic rule-of-law requirements as daily obstacles to the fulfillment of its political program. In contrast to other autocratic legalists, who have tried to conceal contortions of the law or bypass, rather than openly disregard, constitutional requirements, President López Obrador has not hidden his distaste for legal “barriers.” He has defied them, among other reasons because he knows that the law is something people can be polarized about in countries where compliance with the law has not historically been an unconditional good, and where constitutional democracy has not brought about the material progress expected.Footnote ¹²⁰

The Mexican president has substantially progressed in his quest to weaken the checks and balances that the other branches apply to the executive. He has striven to suppress, defund, or leave unstaffed the independent agencies that in Mexico underpin the constitutional division of powers. He has tried to neutralize the judiciary through a mixture of partisan appointments to the Supreme Court, personal public attacks on judges, efforts to negotiate with the former president of the Court, and continual threats of radical reform. He has engaged in fast-track maneuvers to push through the enactment of core political measures, without opening them to public debate and deliberation. Day after day, he has trashed the individuals and groups that shape public opinion and watch over the exercise of power, like the press, the scientific and academic community, civil society organizations, and a varied assortment of other groups. He has structurally changed the nature of public (and economic) power in Mexico by putting the military on an equal footing with the executive. The number of problematic initiatives and actions that he and his parliamentary allies promote every week is astounding. And added to that, López Obrador has engaged in a strategy of attrition–, consisting in uninterrupted legal defiance that leaves political and social actors overwhelmed, without time and energy to react.

We have nonetheless seen that several decades of democratic constitutionalism have placed significant hurdles to this project of personalistic rule that violates core aspects of the rule of law. Concentrating all power has not been ultimately as smooth as imagined for López Obrador, even after a massive electoral victory that left him without any meaningful opposition in Congress. The existence of a highly detailed constitution, as well as fourth-branch institutions with constitutional status, has been crucial in slowing down (and until now preventing) the destruction of the electoral arbiter. Had the INE not been regulated in the Constitution, had it not been designed the way it was, and had it lacked standing to defend its jurisdiction before the Supreme Court, electoral credibility in Mexico might now be something of the past. The results of the intermediate election – which, importantly, diffused power by leaving MORENA as the majority party but unable to amend the Constitution alone – could not have happened without an independent electoral authority.

The presence of reinforced judicial structures with a wide menu of responsibilities and diversified channels of access, has maintained the engagement of the Supreme Court and lower-ranked judges, propelling procedural innovations that will help supervise power in the future, no matter who holds public office. If the national ombudsperson, a body with constitutional status, had not been designed to be appointed on a six-year basis, the militarist statutes enacted at the beginning of AMLO’s term would not have been challenged before the Supreme Court. The Inter-American regional system of rights protection has been equally crucial in aiding national judges under severe pressure. Public criticism of regressive pieces of public policy and regulation would have been impossible without the human rights reforms that have fortified civil society.

Latin America has been able to halt several neo-authoritarian processes. Even if the ups and downs of the political landscape signal a great need for political redirection in ways that genuinely benefit the people, they also show that the sustained, unbridled exercise of presidential power could be something of the past. The dangers of hyperpresidentialism are still here, but the evolution of the region gives some cause for hope. In Ecuador, Lenin Moreno ran for office as a close ally of former president Rafael Correa, but soon became a moderate, and the Council of Social Accountability and Participation provided an appropriate framework for a reappointment process that reversed the presidential capture of state institutions. Colombia lived for eight years under a right-wing populist president, Álvaro Uribe, whom the Constitutional Court stopped from reforming the Constitution so he could run for a third term. Respect for institutions was restored under Juan Manuel Santos, and in 2021, Gustavo Petro won the presidential election with a leftist program committed to reform in crucial areas like land tenure, social policy, and the environment. In Brazil, Bolsonaro deployed policies with immense cost in terms of social justice, pluralism, and democracy. But he lost the election to Lula da Silva and had to leave office, even with his supporters using force in an effort to prevent it.

The hypothesis proposed in this chapter regarding the case of Mexico is that these signs of contestation and recovery in response to challenges to the rule of law by populist leaders have been critically supported by the regional human rights regime as accompanied by broader constitutional developments. The analysis illustrates how important have been features such as the creation of new independent constitutional agencies underpinning the division of powers and the diversification and strengthening of the judiciary, which together have multiplied spaces and occasions for public mobilization. It also suggests, however, that most constitutional resources are activated ex post and place an immense burden on the courts. More effective, systemic prevention of rule-of-law erosion would require the enhancement and use of preemptive solutions, both in the domain of rights and in the domain of the organization of powers. Constitutions in the region are being seriously tested. Nonetheless, carefully pondering their positive contributions in times of crisis gives us reason to continue using the resources they provide in defense of the rule of law, offering resistance to the neo-authoritarian onslaught, and hopefully paving the way to a better future.

I Introduction

Over the last decade, the democratic wave of the 1990s in sub-Saharan Africa, the accompanying constitutional reforms, and the cautious optimism about the possibility of entrenching the rule of law have come under significant stress.Footnote ¹ A thriving democracy is characterized by a cycle of electoral process, free and fair elections, respect for the institutional legitimacy and independence of the judiciary, legislature, and executive and is constrained by the primacy of the fundamental rights of the citizens.Footnote ² After a moment that was characterized by a flurry of constitutional reforms and elections, coups have returned to Africa.Footnote ³

The stress that threatens democratic regimes in contemporary Africa is not unique to the region. Globally, there is a decline in the rule of law and democracies.Footnote ⁴ Democracy and the rule of law are under challenge in the Global North and Global South. Imperial Western countries, like the United States and countries in Europe hitherto regarded as the prime examples of stable democratic governance are today confronted with the fragility of their claims and democratic experiences.Footnote ⁵ In Latin America, recent democratic elections illustrate the decline and erosion of democratic norms and institutions.Footnote ⁶ In Africa, a confluence of events – colonial legaciesFootnote ⁷, uprisings, regional conflicts, term elongations, challenges to the dynastic style of leadership, and the rising incidence of coups – challenge the entrenchment of the rule of law in contemporary Africa. After six decades of independence in many African countries, the governance outlook is to a lesser degree democratic.

The judicialization of election disputes before nationalFootnote ⁸ and regional courtsFootnote ⁹ in Africa has added a further layer to analysis of the rule of law and its implementation on the continent. The motivations for the pursuit of election disputes before national and regional courts in Africa differ. At the national level, the basis for triggering an election dispute process is circumscribed by the relevant electoral laws as a means of seeking redress. The objective is to overturn the outcome of the election in favor of the election petitioner. The approach is different before regional courts in Africa. Litigants engage the regional courts in Africa as alternative forums to center public debate “about policy choices and as a platform to campaign for desired political, social, and legal change.”Footnote ¹⁰ Although the disputes before regional courts in Africa are couched in the language of alleged human rights violations, this chapter argues that they are as much about the rule of law, which is often foreclosed in disputes before national courts. Despite increased judicialization of election disputes before regional courts in Africa, the transnational rule-of-law aspect of these cases has received less scholarly inquiry.Footnote ¹¹

This chapter reimagines contemporary Africa as a theatre for the national, regional, and transnational mutation and contestation of the rule of law and democracy. Focusing on the geographical, socio-cultural, economic, legal, and political landscape between 2020 and 2023 in selected states in sub-Saharan Africa, this chapter critically analyzes the challenge of upholding the rule of law and democratic governance in contemporary Africa.Footnote ¹² Between 2020 and 2023, at least nine military coups have occurred in West Africa, Central Africa, and the Sahel region.Footnote ¹³ The chapter envisions the phenomenon of the rule of law as a continuum, with ruptures occasioned by various factors. The chapter asks: Against the background of recent coups, how should we analyze the rule of law in contemporary Africa? Is the decline of the rule of law and democratic governance in sub-Saharan Africa as a region overstated, given that the coups are concentrated in Francophone West and Central Africa? How should we think of the role of geopolitical contestations and colonial linkages and legacies in unsettling democratic regimes and eroding the rule of law in Africa?

The chapter argues that the answer to the foregoing is at best murky. In sub-Saharan Africa, the factors that lead to episodes of rupture in the rule of law and democracy have overlapping roots in historical, geopolitical, national, and colonial legacies. Consequently, analyses of the decline of the rule of law and democratic governance in contemporary Africa that omit to center the overlapping contributions of these factors to the rupture we see in the rule of law offer an incomplete narrative. To unpack what the chapter describes as the murky narratives of the challenge of the rule of law in Africa, I focus on three frontiers: first, the rise of military coups, elongation of constitutional terms while in office, and the decline of the rule of law in Africa (2020–23). This section draws on experiences in Gabon, Niger, Burkina Faso, and Guinea. Second, the chapter examines entrenchment of the rule of law in terms of a successful transition of power. This section draws on the 2023 presidential elections in Nigeria and Liberia. Third, the chapter assesses the judicialization of election disputes before national courts and an emerging crisis of legitimacy. The judicialization of election disputes in national courts may have two implications for the entrenchment or weakening of the rule of law. On the one hand, the judicialization of election disputes and emergence of a winner as declared by the courts is an affirmation of a core tenet of the rule of law enshrined in the role of the courts. On the other hand, the incessant judicialization of election disputes risks weakening the authority of the concerned national court. To illustrate the enmeshment or nonenmeshment of the rule of law and the challenges this poses for the legitimacy of the judiciary, I draw on contemporary experiences in Nigeria.

Methodologically, this chapter engages in socio-legal analysis. The analysis draws on the contemporary practices, debates, and national – and where relevant, international – factors to analyze the interconnectedness and confluence of factors that should underpin analyses of the rule of law and democracy in Africa. Analyses of the rule of law in the African context are laden in the contested discourse of the creation of African states and the continued power relations that they encounter. Put differently, as a form of social thought, without cultural and historical contexts, Eurocentrism is fully expressed in the rule of law. Consequently, an analysis of the rule of law to be seen as non-Eurocentric, and thus not a mere transplant of ideas, must be narrated through the understanding of the peoples concerned.Footnote ¹⁴ The chapter foregrounds the understanding of the principles of, and challenges to, the rule of law as they manifest in different African states, in contrast to a universally valid idea of the rule of law. Consequently, the analysis in this chapter sidesteps the critique of “normative incompleteness, cultural blindness, Anglo-Saxon imperial complicity and historical context”Footnote ¹⁵ by weaving in the unique confluence of social, economic, political, socio-cultural, and geopolitical contexts that overlap in its analysis of the rule of law in Africa.

II The Rule of Law in Contemporary Africa in Context

Democratic experiences in Africa remain relatively young and fragile.Footnote ¹⁶ Since the democratic turn of the 1990s and early 2000s that birthed modern constitutionalism and democratic governance in different African states, the challenge of the rule of law has ignited various kinds of debates. But what, exactly, is the rule of law? Undoubtedly, the rule of law and democracy are contested concepts.Footnote ¹⁷ In their introduction, Gregory Shaffer and Wayne Sandholtz conceptualize the rule of law in terms of ideals and goals. In terms of goals, the rule of law serves to “protect individuals from arbitrary power through legal rules and institutionalized practices, while providing channels for cooperative and coordinative activities.”Footnote ¹⁸ As an ideal, the rule of law presupposes that “individuals are not to be subject to the arbitrary exercise of power.”Footnote ¹⁹ The rule of law, they argue, is “a normative ideal that should be viewed teleologically in terms of its ends.”Footnote ²⁰ For Shaffer and Sandholtz therefore, the rule of law is most effectively entrenched in democratic regimes as a result of its becoming “institutionalized … a habit or routine.”Footnote ²¹ Their analysis of the rule of law differs from the parochial checklists that some Western scholars develop from their own legal traditions and universalize. In this regard, Shaffer and Sandholtz argue, and I agree, that: “Countries can produce quite different sets of rules for regulating social life in furtherance of rule-of-law principles.”Footnote ²²

Across African states, the rule of law is envisioned as a vehicle for the transformation of states into liberal democracies and for the protection of individual rights and the promotion of freedom. Despite contestations with respect to its evolving and pluralized contours, the rule of law remains the cornerstone of any legitimate democratic society.Footnote ²³ Adherence and fidelity to the rule of law is fundamental to meaningful democracy. At the same time, law constitutes and reconstitutes unequal social relations. As a result, a continent like Africa, uniquely characterized by its contested histories and challenging contemporary realities that differ from state to state, must be placed in context.

The discourse, permutations, and understandings of the rule of law vary and are keenly contested by and among states. A conventional approach to understanding the rule of law is based on the ethos of good governance, accountability, and democracy that are prescribed by Global North countries for their Global South counterparts. Contemporary democratic practices and backsliding of the rule of law differ and do not fit strictly into the conventional framework of top-down diffusion of ideas from the West.Footnote ²⁴ In a sense, they are counterintuitive. Hence, metrics – qualitative and quantitative – that have been developed to measure the rule of law have not been as helpful in the African context, as the spectrum on which various indicators exist differs from state to state.Footnote ²⁵

Postcolonial realities, dictatorships, democratic turns and setbacks, state capture by national elites, rise of populism, coups, and the rising incidence of fake news and disinformation all test the limits of the rule of law in Africa. In historical and contemporary African societies, the legal, social, historical, political, cultural, geographical, and other circumstances differ; consequently, they place a limit not only on a rigid conceptualization of the rule of law but also on its practices.Footnote ²⁶ Whether we think of the phenomenon of the rule of law as thick or thin, as procedural or substantive, as modern constitutional law, or as norms of cultural behavior or democratic governance, the manifestations of the rule of law in Africa buttress the assertion that it is an essentially contested concept.Footnote ²⁷ Africa is thus a theatre for the national, regional, and transnational mutation and contestation of the rule of law and democracy. Accordingly, the study of Africa and the rule of law must be done on its own terms. In essence, there is no singular idea of the rule of law, nor is it determinate without context. It is in this context that I agree with Shaffer and Sandholtz that, to avoid the temptation of “formulaic checklists based on specified, formal characteristics,” the rule of rule should be defined “in terms of goals and practices.”Footnote ²⁸

Notwithstanding its contested nature, a core function of the rule of law is that it offers an assurance to the citizens about the steps and standards to which electoral processes will be held as well as the remedies that are available in the event of default or noncompliance. The rise of multiparty elections in Africa heralded an era of potential consolidation of democratic governance and the ethos of rule of law. The rule of law is critical for the conduct of elections in democratic regimes.Footnote ²⁹ Electoral laws regulate the conduct of elections and the challenging of outcomes and offer general guidance on how political office holders are to be elected across local, state, and federal elections. The consistent conduct of elections in many Africa states has seen growth in opposition candidate victories in many countries.Footnote ³⁰ These outcomes are increasingly contested before Africa’s national and regional courts.Footnote ³¹ Africans are more aware of their civil and political rights in the context of elections as well as the role courts play in the adjudication of disputes emerging from the conduct of elections. Yet, these gains in election consolidation have not completely dispelled the view relating to the precarity of the rule of law in the region. Elections and the disputes that follow are therefore an important terrain where the practice of the rule of law must be analyzed.

The rhetoric of the protection of the rule of law is consistently weaponized by both democratic and authoritarian governments. For many years in postcolonial Africa, authoritarian regimes characterized the landscape of the continent.Footnote ³² The continuum of colonialism, colonial legacies, state capture by national elites, and weaponization of the institutions of liberal democratic states to legitimize elite interests must be viewed in a wholistic way – not in isolation. Likewise, the ongoing effects of geopolitical contestations by powerful Western states with economic and military interests in Africa has a direct connection to the entrenchment or weakening of the rule of law in African states. Yet, it must be noted that “a system governed by the rule of law … may not address deeply embedded inequities. It may provide procedural justice but deny substantive social justice.”Footnote ³³

Shaffer and Sandholtz’s conceptualization acknowledges the plurality of legal orders and traditions that would generate one’s understanding of the rule of law. In the peculiar context of Africa, several legal orders coexist within a state and across the continent. As such, rather than undertake a definition of the rule of law, I agree with Shaffer and Sandholtz’s argument that “any meaningful understanding of the rule of law must be based on cultures of practice embedded in rule-governed institutions.”Footnote ³⁴

Accordingly, the chapter conceives of the rule of law as a bulwark against the arbitrary exercise of power. Attempts by political leaders at any level of government to curtail the rights of the individual can be resisted by seeking redress within the institutions of a democracy. A system of government that denies the existence of such rights would not entrench the rule of law. The rule of law is a means to achieve several public goods and serves to address shortcomings in a society.Footnote ³⁵ Analyses of the challenges – strengthening or declining – of the rule of law in Africa must be embedded in the particular socio-cultural, legal, political, and historical contexts in question. At the same time, scholarly analysis that is not enmeshed in the transnational context of the interactions and reinforcing nature of the factors that trigger the breakdown of law and order which aggravate the likelihood of human rights violations would fail to capture the wider factors at play in Africa – particularly as they relate to the role of former colonial metropoles in disrupting democratic governance in African states.

This chapter foregrounds a bottom-up approach to the analysis of the challenges to the rule of law in Africa. It differs from a priori measurement standards, often Western-centric, that become the tool for the assessment of the rule of law. The rule of law’s legitimacy crisis has not weakened its importance in every society. The promises of the rule of law, even in its weakened state, trump any authoritarian or military ideal. Authoritarianism, and particularly military dictatorship as many African states have experienced, proscribes the fundamental human rights of peoples, leaving them in a vulnerable state. Likewise, national courts are placed in a precarious position with respect to their capacity to adjudicate cases that involve the violation of human rights. My conceptualization of the rule of law in the African context foregrounds the value of historical and socio-cultural practices, and the heterogeneity of states and regions as essential to understanding the rule of law in Africa.Footnote ³⁶ Pluralized conceptualizations of the rule of law “lay the conditions for each conception to be enriched by elements that are not initially part of its content.”Footnote ³⁷ In Part III, I turn to the three narratives through which I analyze the challenges to the rule of law in contemporary Africa.

III Murky Narratives of the Strengthening or Decline of the Rule of Law in Africa

Rule of law is a convenient alibi for various actors in the governance of African states.Footnote ³⁸ Incumbent and opposition political parties deploy the rule of law to justify different narratives that suit their pursuit of, or entrenchment in, power. In many cases, when the rule of law comes under scrutiny in Africa, it becomes apparent that the interests of the people and the state are not the drivers of actions. With eight presidential and overlapping legislative elections spread across the length and breadth of the continent, 2023 has been described as Africa’s election year.Footnote ³⁹

This section analyzes the contemporary practices and developments of selected African states along three major themes. First, it assesses the rise of military coups, elongation of constitutional terms while in office, and the decline of the rule of law in Africa (2020–23), drawing on experiences in Gabon, Niger, Burkina Faso, and Guinea. Second, it examines cases of the entrenchment of the rule of law in terms of successful and peaceful transition of power, drawing on the 2023 presidential elections in Nigeria and Liberia. Third, it analyzes the judicialization of electoral disputes before national courts, drawing on Nigeria to illustrate the challenges it poses for the legitimacy of the judiciary, thus implicating broader rule-of-law concerns.

IV In Lieu of Conclusion: Emerging Transnational Rule of Law and Good Governance in Africa?

This chapter would be incomplete without some reflection on the evolving transnational practice of the rule of law as championed by Africa’s regional and subregional courts. The transnational context of the rule of law is equally gaining ground in Africa. In Africa, where national courts have struggled, as the previous section on judicialization illustrates, Africa’s international – regional and subregional – courts increasingly provide an alternative forum for litigation to advance protections against alleged arbitrary exercises of power by the national ruling party. The emerging jurisprudence and legal order that Africa’s regional courts offer is transnational in nature.

The concept of Transnational Legal Orders (TLOs) advanced by Terrence C. Halliday and Gregory Shaffer “provide[s] new theoretical tools to integrate transnational, national, and local lawmaking and practice into a coherent framework to capture the dynamic changes in legal ordering taking place today.”Footnote ¹⁰⁶ The allure of coherence in the transnational legal order, however, belies the fluidity, complexity, and ambivalence of the rule of law practices before Africa’s regional courts. The disputes that are judicialized before Africa’s regional courts emerge from different legal regimes, contexts, and facts, and the motives for their judicialization differ. As such, the case for coherence in the rules of the legal order that Africa’s regional courts are developing is less persuasive. In engaging the rule of law as a transnational legal order, Jothie Rajah makes a similar observation. For Rajah, “the regulatory precision implied by the order is paradoxically undermined by the shifting meanings of the rule of law.”Footnote ¹⁰⁷

Most importantly, as Shaffer and Sandholtz note in their contribution to this book, TLOs “are normative orders that implicate law and legal practice across and within multiple national boundaries.”Footnote ¹⁰⁸ For them, “transnational legal processes provide normative resources to protect human rights, uphold democratic processes, and safeguard the rule of law.”Footnote ¹⁰⁹ Shaffer and Sandholtz also assess the role of international law and institutions in entrenching the rule of law from a transnational perspective.Footnote ¹¹⁰ Still, the emerging transnational rule of law in Africa, as opined by Africa’s regional courts, does not presuppose a coherent and single narrative about legal principles and legal orders.

Africa’s regional courts have been at the forefront of mega-political disputes. The impact of Africa’s regional and subregional courts as actors in transnational normative processes, in the context of high-profile elections, and how they contribute to the strengthening of transnational public discourse have been documented by scholars. While transnational judicial dialogueFootnote ¹¹¹ between African, European, and Latin-American regional judicial legal orders is trending upward, the extent to which the transnational judicial dialogue is happening between regional and national legal orders in Africa remains very low.

The strategic litigation of the rule of law in Africa’s regional courts, which foregrounds the socio-political, legal, economic, and cultural contexts of the disputes, bypasses national challenges and pushes back on “elite agreement at transnational level.”Footnote ¹¹² In turn, the growing judicialization before Africa’s regional courts opens the door for a more transnational articulation of the rule of law in Africa. Increasingly, Africa’s regional courts monitor states’ “behind the border adherence to international commitments such as human rights treaties, … [and] rule of law.”Footnote ¹¹³ Africa’s regional and subregional legal orders that guarantee rights for individuals and civil societies (as norm developers to access their courts) have transnational effect.Footnote ¹¹⁴ Strategic human rights litigation, with express overlap on the rule of law, has been judicialized before Africa’s regional and subregional courts. These disputes, arising from various national contexts, are anchored on the importance of the rule of law and consolidation of democratic governance in Africa.Footnote ¹¹⁵

Litigants before regional courts frame disputes in a transnational way.Footnote ¹¹⁶ Africa’s regional courts are in essence invited by litigants to adjudicate over processes and outcomes that in many cases have been the subject of votes by the citizens. If, as Shaffer and Sandholtz argue, “in an interconnected world, the rule of law should be viewed as a normative social order that involves the horizontal, vertical, and transversal interaction of domestic and international law, which, in turn, reciprocally affect each other,”Footnote ¹¹⁷ there is more to be thought about and written on the transnational rule of law aspects of the disputes before Africa’s regional courts.

Africa’s regional courts are transnational venues that welcome litigants – individuals, civil society, multinational corporations – as transnational entrepreneurs.Footnote ¹¹⁸ Africa’s regional courts are nonstatic in the generation, affirmation, and protection of the rule of law. Normatively, then, the courts are agents for the generation, affirmation, and protection of a transnational rule of law in Africa. Under their watch, transnational litigation, naming and shaming, and cases initiated for the purpose of accountability and for social engineering are accepted to push back on the decline of the transnational rule of law in Africa. Notably, there are lingering signs of a decline of the rule of law where member states limit the opportunities for individuals and civil society to pursue cases against them in the regional courts. In the context of the African Court on Human and Peoples’ Rights, some states have tried to shield themselves from scrutiny by withdrawing the declaration that allows citizens and relevant nongovernmental organizations direct access to the African Court. In a similar vein, other subregional courts also have faced backlash from their member states.Footnote ¹¹⁹ The emergent body of transnational rule of law from Africa’s regional and subregional courts should not be restricted to judicialization of high-profile election disputes alone. Future research can explore the evolving transnational legal ordering of environmental law,Footnote ¹²⁰ climate policies, and mutinational corporations before regional courts, among other issues.

In June 2020, people took to the streets calling for democratic and legal reform in Thailand. The National Council for Peace and Order (NCPO) had installed a military government on May 22, 2014, the thirteenth coup since the transition from absolute to constitutional monarchy in 1932. Though the junta had officially exited from power following a general election in March 2019, its leader, General Prayuth Chan-ocha, remained prime minister and many laws and policies put in place by the military regime remained in place. The protests coalesced around three initial demands: the prime minister must resign, a new constitution must be drafted, and the state must stop threatening dissidents. In August 2020, the fourth demand was added: the monarchy must be reformed. Despite the nominal status of Thailand as a constitutional monarchy for over ninety years, the position of the monarchy in the polity, which formally is to be a democracy with the king as head of state, remains unclear.Footnote ¹ Increasingly large protests in September, October, and November 2020 supported the demand for reform of the monarchy. The government responded with police violence and prosecutions, particularly under Article 112 of the Criminal Code. Article 112, often referred to simply as Thailand’s lese majesty provision, stipulates an outsize punishment of three to fifteen years’ imprisonment per count of defamation, insult, or threat to the king, queen, heir apparent, or regent. The second postcoup general election, held in May 2023, resulted in an overwhelming victory for opposition parties and a strong mandate for both the military to exit from power and the constitution to be revised. But the Move Forward Party, which secured the most votes and included reform of Article 112 as one of its key policy provisions, faced social and legal accusations of disloyalty to the monarchy for daring to do so.

On the surface, Thailand may appear to be a particularly egregious illustration of the rule by law, of the thin rule of law, or of law-and-order regimes favored by autocrats.Footnote ² But examination of the criminalization of calls for reform around the monarchy indicates that a deeper, and more concerning, development may be underway. The law is being used to criminalize peaceful dissent over, or even mere questioning of, how power is apportioned and exercised in the polity, so as to preserve the monarchy. Procedure is being interpreted to restrict and twist fundamental concepts, including innocence and guilt. The interpretation and implementation of the law are being deployed in an attempt to transform the political and legal system.

The recent movement for reform of the monarchy can be understood as being in the service of what Gregory Shaffer and Wayne Sandholtz define as “the rule of law as an ideal – or meta-principle – under which individuals are not to be subject to the arbitrary exercise of power.”Footnote ³ The movement aims to clarify and limit the ambiguous institutions behind the arbitrary exercise of power (i.e., the monarchy and its allies – namely, the military and the judiciary) and create space for the voices and desires of the people to be meaningful in governing the polity.Footnote ⁴ The backlash should be understood as an attack on the rule of law that aims to expand and entrench the arbitrary exercise of power within and in relation to the law and judicial process. The primary tool of repression is the law itself (i.e., the use of Article 112 and related constitutional provisions), which obscures the violence contained within it. After all, those who hold power are only enforcing the law against those who violate it.

Motivated by concern with both the immediate effects on the lives of those who dare to dissent and the long-term changes in law and politics, I examine the movement for democracy and reform of the monarchy and the backlash in 2020–23 through Shaffer and Sandholtz’s framework. I focus on the five sources of arbitrariness within regimes that present themselves as pro–rule of law but act to weaken or destroy it. The specificity of the framework makes it possible to apprehend the operations and entrenchment of the arbitrary in the law, the significance of challenging it, and the tremendous courage of those who risk doing so. I proceed by first offering a brief recent history of the rule of law and Article 112, highlighting the entry of the five sources of arbitrariness into the judicial process. Second, I analyze the movement in 2020–23 as a response and challenge to this history and the obstacles to the rule of law it entrenched. Third, I examine the backlash as both an attempt to halt transformation and evidence of how far the monarchy and their allies are willing to go to preserve their power. Finally, I conclude with preliminary reflections on ongoing developments at the time of this chapter’s completion. Ten years and two elections after the May 2014 coup, it is time for a transition to democracy in Thailand, but dangers to the rule of law remain strong. This demands scholarship capable of both comprehending those dangers and identifying strategies to challenge them.

I A Recent History of the Rule of Law and Article 112

On June 24, 1932, when the People’s Party, a civilian–military coalition, fomented the transformation from absolute monarchy to a constitutional regime, their goal was to “change from the system of government in which the king is above the law to the system of government in which the king is under the law.”Footnote ⁵ Making everyone in the polity subject to the same law should have been a foundational step to establish the rule of law and stem the arbitrary exercise of power. Yet the political and legal history of the last ninety years in Thailand demonstrates the challenges in doing so. The challenges are most evident in the series of periodic coups and the difficulty of bringing the king – and his close allies in the military – under the law. Prior to 1932, the military was the army of the king and this has changed little, and even intensified during the Cold War, with their interests and resources linked.

Beginning with a military coup in 1933, only a year after the end of absolute monarchy, there began a cycle consisting of a coup and the abrogation of the constitution, drafting of a new constitution and elections, and then another coup once democracy becomes too unruly. Since 1932, there have been twelve coups, twenty constitutions, and thirty prime ministers.Footnote ⁶ Part of this cycle is impunity for those who launch coups, with each coup followed by an amnesty law. Legal scholar Somchai Preechasinlapakun argues that this provides an incentive for would-be coup-makers to overturn the system. Rather than the rule of law, he explains that a “rule of coups” is present.Footnote ⁷ Accompanying the rule of coups, Thongchai Winichakul argues that the rule of law is royalist, meaning that “the king is above law and justice (not the constitution or parliament that are held to be universal norms).”Footnote ⁸ From the very beginning, citizens have pushed back against both the rule of coups and the royalist rule of law, but it has been difficult for them to gain traction against both ingrained practices.

Yet, as the Cold War wound down by the early 1990s, democracy seemed possible and coups seemed to perhaps be a phenomenon of the past in Thailand. In 1997, the seventeenth constitution, dubbed the “People’s Constitution” due to the participatory process through which it was drafted, seemed like it might be permanent.Footnote ⁹ But as parliamentary politics and political parties without strong allegiance to either the monarchy or the military grew too strong and unruly, the rule of coups returned. On September 19, 2006, the twelfth coup ousted the elected prime minister, Thaksin Shinawatra, and set in motion a sustained attack on democracy and the rule of law, which continues today. This included both a brutal state crackdown on protestors calling for the return of elections in April–May 2010 and then the May 22, 2014, coup, which is the primary subject of this chapter.

The May 22, 2014, coup by the NCPO ushered in the most repressive regime in Thailand since the counterinsurgency regimes of the Cold War. The regime promised to “return happiness to the people” after nearly ten years of polarized political contention beginning in the period prior to the previous coup, which took place on September 19, 2006. The 2006 coup was instigated by those who perceived that the government of democratically elected prime minister Thaksin Shinawatra – and, in particular, its widespread popular support – was a threat to the monarchy.Footnote ¹⁰ Rather than resolving it, the coup only deepened the conflict between the royalist–nationalists who called for it and the democratic–populists who opposed it. While review of the contention between 2006 and 2014 is beyond my analysis here, the choice of a coup to attempt to resolve it set the stage for the entrenchment of the violation of the rule of law.

Article 112 has been part of the Criminal Code since its last revision in 1957, but it was rarely used until after the September 19, 2006, coup.Footnote ¹¹ Anyone can walk into a police station to make an accusation of lese majesty against another, and the police are then obliged to investigate it. Cases began emerging following the 2006 coup, with dissident activists, writers, and netizens being prosecuted. Then, following the 2014 coup, Article 112 became one of the NCPO’s key tools to remake society, and cases quickly spiked and far exceeded previous records. The increase in cases paralleled the advancing age of King Bhumipol, who was the longest-reigning monarch in the world at the time of his death on October 13, 2016, and concern over the transition to his son, Vajiralongkorn, who was surrounded by unsavory rumors about his personal life and his fitness for kingship.Footnote ¹² The NCPO most frequently opted to use the law and prosecution, rather than extrajudicial violence, as its tool to suppress and silence its critics. The NCPO also sought to stifle dissent by revoking the passports of Thai citizens who resided abroad and declined to return.Footnote ¹³

According to Thai Lawyers for Human Rights (TLHR), formed in the first days after the coup to document rights violations and defend those targeted, at least 162 were prosecuted for violation of Article 112 during the NCPO’s five-year regime.Footnote ¹⁴ People were prosecuted under Article 112 for performing plays, writing graffiti in bathrooms, having conversations in taxis, and – representing the largest number of cases – making social media posts. The longest known punishment was handed down to Wichai (family name withheld), who was sentenced to thirty-five years’ imprisonment for ten Facebook posts deemed to violate the law in June 2017; Wichai’s sentence was reduced from seventy years as he confessed.Footnote ¹⁵ After King Bhumibol’s death in October 2016, there was initially a rapid decline in new Article 112 cases. After a decade of increasing accusations and prosecutions, this seemed like a hopeful sign of decriminalization of speech critical of the monarchy. Upon closer examination, however, it soon became clear that the lack of prosecution did not mean that critics of the monarchy were now free to criticize the king, but rather signaled a new kind of danger for dissidents and the Thai polity.Footnote ¹⁶ The murder or disappearance of at least nine republican critics in exile illustrated the gravity of this danger.

Unjust prosecutions of dissidents and extrajudicial killing of them is part of a continuum of violence. These actions, as well as the difficulty of halting the prosecutions or holding the assassins to account, exemplify the crisis of the rule of law in Thailand. Shaffer and Sandholtz’s five sources of arbitrariness highlight the dangers to both individuals and the polity.

The five sources of arbitrariness point to a range of moments, sites, and actors involved in the unjust exercise of power detrimental to the rule of law. The first source of arbitrariness is based on the radical inequality of those within the polity, in which “the wielder of power is not subject, in practice, to the law, its controls and limits.”Footnote ¹⁷ Accompanying Article 112, which provides special protection for the king, queen, heir apparent, or regent, Article 6 of the 2017 Constitution further stipulates that: “The king shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the king to any sort of accusation or action.” This means that the king cannot himself face prosecution and exists above the law.

Compounding the inequality between the rulers and the ruled in the polity, it is impossible for citizens to guess when they will or will not be charged under Article 112. Once the surge in prosecutions began after the 2014 coup, many people were concerned that they would be arrested for articles they had written, social media comments they had posted, and other actions. Some were, but many were not. Many were also concerned that they might be killed, and, again, some were. This reflects the second source of arbitrariness, in which “individuals are unable to know and predict how power will be wielded over them.”Footnote ¹⁸ The condition of not knowing what violence one will experience for expressing one’s view generates fear that limits public discussion about the monarchy and power generally in Thailand.

The third and fourth sources of arbitrariness further structure the relationships between those who hold power and those subject to its operations by distinguishing between those who are not permitted to explain their actions and, conversely, those who can act without having to offer any explanation. Shaffer and Sandholtz explain that the third source of arbitrariness “is where individuals have no place to be heard, inform, question, or respond to how power is exercised over them.”Footnote ¹⁹ Many Article 112 cases arise precisely from questioning or responding to the exercise of power by the monarchy, not from anything clearly recognizable as defamation, insult, or threat. Yet judges interpret the very questioning of the king’s power as all three. Defendants in Article 112 cases who choose to plead innocent and fight their cases are further punished with a nearly certain guilty verdict, while those who confess are rewarded with a halving of their sentence. The fourth source of arbitrariness intersects closely with the third and is “where authorities do not engage in public reason-giving in issuing their decisions, which reasons then can be contested, including before judicial, political, and administrative processes.”Footnote ²⁰ The courts frequently cite the long-standing presence of the monarchy and a presumed universal love for the king as the reasons for their harsh punishment of those who dissent. No arrests have been made in the cases of the nine disappeared or extrajudicially killed republican exiles; the ability to kill one’s critics with impunity further reflects and consolidates the power of the monarchy and its allies.

The fifth source of arbitrariness is “the proportionality of any measure in terms of the reasonable relationship of means and ends.”Footnote ²¹ The minimum punishment per violation of Article 112 is three years and the maximum is fifteen years. There are no standard sentencing guidelines, but several examples illustrate the outsized punishments meted out to those who dissent. Daranee Charnchoengsilpakul, prosecuted in the first wave following the September 19, 2006, coup, was initially sentenced to eighteen years’ imprisonment for three counts of violation of the law in relation to roughly fifty-five minutes of speech. Her sentence was reduced on appeal to fifteen years’ imprisonment or roughly one year for each four minutes of speech.Footnote ²² Wichai, mentioned above as receiving the longest sentence during the NCPO regime, was initially sentenced to seventy years’ imprisonment for ten Facebook posts, or seven years per post; his sentence was reduced to thirty-years once he confessed. These sentences cannot be understood as anything other than disproportionate.

Activists, lawyers, journalists, academics, and others kept up a steady challenge against the abuse of Article 112 and the accompanying forms of the arbitrary exercise of power that began with the September 2006 coup. Some defendants, like Daranee Charnchoengsilpakul, chose to fight their cases as a further form of protest even though they knew it would likely result in a harsher punishment. Lawyers provided pro bono defense for those accused and a few brave journalists reported on the cases. During the relatively open period of 2012, while Yingluck Shinawatra was prime minister, a coalition of academics, journalists, and others formed the Campaign Committee for the Amendment of Article 112 (CCAA112) to advocate for the amendment of the law so as to limit who could make accusations of violation of the law and reduce the possible punishment. CCAA112 used a constitutional provision enabling any citizen group that gathered enough signatures of support to propose the draft of a law for parliament to review, but parliament refused to even consider the draft on the basis of national security. Then, in the first few days following the May 22, 2014, coup, when the likely depth of the NCPO’s repression became clear, lawyers and activists, many active during the preceding decade, joined together to establish TLHR, which became the primary documentary and advocacy organization defending dissidents. But while those active in challenging the arbitrary exercise of power were committed, their numbers remained small until 2020, when a movement emerged to name and directly counter the forms of arbitrariness and clarify the place of the monarchy in law and politics in defense of the rule of law.

II A Movement Emerges

The disappearance of the ninth exiled republican critic, Wanchalearm Satsaksit, in Phnom Penh on June 4, 2020, catalyzed a wave of protests.Footnote ²³ In June 2020, there had been no domestic transmission of the coronavirus for over two months, and while the emergency law prohibiting mass gatherings was still in place, activists began to assemble, initially to call for justice for Wanchalearm and the other disappeared and murdered republican exiles, and then to make broader demands for democracy. By July, regular protests were taking place in Bangkok and provinces around the country, organized by different groups of youth activists. Initially, the protests had three main demands. First, the current prime minister, General Prayuth Chan-ocha, must resign. General Prayuth governed for five years as head of the NCPO and then retained his position following the March 2019 general election through a series of antidemocratic maneuvers. The election was meant to mark the end of military dictatorship but instead signaled a new era of authoritarian repression cloaked in the form of electoral democracy.Footnote ²⁴ Second, a new constitution must be drafted. The 2017 Constitution, Thailand’s twentieth, was drafted by a junta-appointed body and expanded the authority of the state and king while dispossessing the people of rights.Footnote ²⁵ Third, the state must stop threatening dissidents through both excessive legal prosecution and extrajudicial intimidation and violence.

In August 2020, a fourth demand was added: the institution of the monarchy must be reformed. The demand for reform of the institution of the monarchy was first publicly introduced by Arnon Nampa, a human rights lawyer at TLHR and poet, during a speech at a Hogwarts-themed protest on August 3, 2020. Dressed as Harry Potter, Arnon promised that he would speak openly about the institution of the monarchy from that day forward and called on others to do so. Arnon argued that without speaking openly about the monarchy, the other three demands of the protestors were meaningless and could not result in change. Speaking openly about the monarchy is both the first step and essential to curtailing the sources of arbitrariness in the polity. Foreseeing the impending backlash, he said that speaking about the monarchy.

To make visible the forces behind the arbitrary exercise of power in the polity is threatening to those who benefit from such power.

A week later, on August 10, 2020, the United Front of Thammasat and Demonstration (UFTD), a new student organization based at Thammasat University, the historic center of student protest in Thailand, held a protest in which it unveiled a ten-point proposal that elaborated how to carry out the reform of the institution of the monarchy. The proposal, read by Panusaya Sitthijirawattanakul, a sociology and anthropology student at Thammasat and one of the leaders of the UFTD, included calls for restraints to be placed on the king’s authority – importantly, including an end to royal endorsement of coups; for the personal, private assets of the king to be separated from the public assets of the crown financed by the people; for military units the king had placed under his own command to be transferred back to the usual chain of military command; for Article 112 to be abolished; and for justice to be secured in the cases of the disappeared and murdered republican exiles.Footnote ²⁷ While the institution of the monarchy developed strong links to the military and the financial, landholding, industrial, and other forms of capital under Bhumipol, Maha Vajiralongkorn transferred public crown assets to his personal control and placed military units under his direct command.Footnote ²⁸ The palace is not legally required to provide full financial transparency nor does it do so voluntarily. But Al Jazeera reported in January 2021 that King Vajiralongkorn was the world’s wealthiest monarch, with a fortune of at least USD 30 billion and perhaps up to USD 70 billion.Footnote ²⁹

The UFTD’s ten demands for reform became a staple of protests in the next months. They aimed to counter arbitrariness in the Thai polity by bringing the wielder of power under the law, ceasing the unpredictable exercise of power upon dissidents, and ending disproportionate punishment, or any punishment, for the peaceful expression of dissenting opinions. Most significantly, the demands and the broader movement were a direct claim to question and counter the arbitrary exercise of power.

III A Backlash Ensues

After the August 3 and August 10, 2020, protests, many observers were concerned that speaking so frankly about the monarchy would frighten the majority of the people and end the budding democracy movement. Instead, the movement “shattered the ceiling” (“ทะลุเพดาน”) of what could be said about the monarchy in public discussions in Thailand. For a time, Thailand seemed poised on the brink of tremendous change in terms of a transition to democracy, reform of the monarchy, and strengthening of the rule of law. But then a backlash began, marked by entrenchment of existing sources of arbitrariness.

Parit Chiwarak, another Thammasat University student and member of the UFTD, concluded a speech he gave in Khon Kaen province in northeastern Thailand on how the king’s endorsement of coups had harmed society by noting that:

Parit’s comments reflected his awareness of the nine disappeared and murdered republican exiles and the risk that those who speak about the monarchy incur. His choice of words – “We all will know who ordered it” – is both a critique of the king’s power and a challenge to it in the form of speaking about it openly. Parit remains alive, but has twenty-four pending Article 112 cases against him. Were he to be convicted in even only a handful of these cases, this would result in a de facto life sentence. Beginning in November 2020, criminal cases began to be brought against activists who participated in demonstrations, particularly those who called for the reform of the monarchy, with many cases against Parit, Arnon, Panusaya, and other leaders and activists.Footnote ³¹ According to a TLHR report, between November 24, 2020, and June 26, 2023, at least 252 individuals have been arrested and charged with violation of Article 112.Footnote ³² The majority of these charges stem from peaceful, unarmed expression of opinion about the monarchy and its place in the Thai polity. Periods of denial of bail prior to trial have become routine for those accused, and adherence to stringent bail conditions is required for those released. One of these conditions is to not participate in any further protest or do anything that might damage the monarchy, which is left unspecified in the release orders.

Alongside the criminal proceedings under Article 112, another judicial process related to the August 3 and 10, 2020, demonstrations illustrates the dwindling of the rule of law and the expansion of arbitrariness in Thailand. Article 49 of the 2017 Constitution permits anyone who believes that others are engaged in efforts to overthrow rule by democracy with the king as head of state to request that the Constitutional Court examine their actions, and for the cessation of such efforts to be ordered if found to constitute overthrow. Like the courts of justice as a whole, the Constitutional Court is closely linked to the institution of the monarchy.Footnote ³³ First established following the promulgation of the 1997 Constitution, it comprises nine justices royally appointed following suggestion by royally connected institutions. The nine justices of the current court include three Supreme Court justices appointed by the Supreme Court, two Supreme Administrative Court justices appointed by the Supreme Administrative Court, and two legal experts and two political science experts appointed by the Senate, whose current members were appointed by the NCPO leaving office in 2019.

Article 49, which first appeared in the 1997 Constitution, was intended to protect against future coups. But in September 2020, Nattaporn Toprayoon, a royalist lawyer, submitted a petition to the Constitutional Court arguing that Arnon’s speech on August 3 and the peaceful, unarmed demonstration by the UFTD at Thammasat University on August 10 and its ten-point proposal constituted an overthrow of democracy with the king as head of state.Footnote ³⁴ In sloppy prose and with unclear logic, Nattaporn advanced a series of arguments aiming to discredit and vilify the activists. He denied the activists’ claim that they aimed to reform the institution of the monarchy and instead argued that they aimed to create disorder and division.

There were two key slippages in his argument. The first is that he did not define the meaning of a system of rule by democracy with the king as head of state and instead argued that the activists disrespected and wished to overthrow the monarchy. While Article 49 of the Constitution applies specifically to the system of rule, accusing the activists of aiming to overthrow the monarchy is a much stronger, and (for the activists) more dangerous, argument to make. Nattaporn’s second slippage is complementary. He collapsed the meaning of opposition and overthrow into one another.Footnote ³⁵ This move fails to recognize the role of peaceful opposition in building and sustaining democracy. Rather than a clear argument as to how the activists’ peaceful speeches constituted, or would even lead to or prompt, overthrow of rule by democracy with the king as head of state, Nattaporn instead repeatedly claimed that the speeches made him and others who loved the king uneasy.Footnote ³⁶ Nattaporn included extensive quotes from the activists’ speeches in his complaint, but the quotations called his argument into question.

The three activists named in the petition – Arnon, Panusaya, and Panupong Jadnok, a student at Ramkhamhaeng University and member of the UFTD – were limited to submitting a written response to his petition. They explained that they were calling for reform, not overthrow, of the institution of the monarchy; challenged the vagueness of his argument; and indicated their willingness to provide verbal testimony to the Constitutional Court if needed.Footnote ³⁷ Despite the gravity and complexity of the case, neither the three activists nor the academics and other experts they prepared as witnesses were allowed by the Constitutional Court to provide verbal testimony. When arbitrariness reigns, those who hold power are seen as beyond question and those who challenge it beyond reason.

The Constitutional Court spent over a full year considering the petition. In November 2021, the Constitutional Court ruled that the activists’ actions constituted overthrow of rule by democracy with the king as head of state and ordered them to cease their activities immediately. An abbreviated version was read on November 10, 2021, and the full ruling was released on November 29, 2021. The Constitutional Court framed its ruling by recounting the facts and describing the context of the case in a way that favored Nattaporn. The Constitutional Court discounted any need to protect human rights by emphasizing the performance of duty and maintenance of good morals rather than freedom of expression. The Court placed duty in relation to a narrative of Thai history that centered the king as an unchanging, central figure in the polity, whose role was unaffected by the events of June 24, 1932. Like Nattaporn, the Constitutional Court opted not to believe the activists when they said that their intention was to reform the institution of the monarchy in order to preserve it. Relying on an unusual definition of overthrow, the Constitutional Court therefore concluded that the activists were engaged in overthrow of rule by democracy with the king as head of state and ordered them to immediately cease their activities.Footnote ³⁸ The ruling rendered by the Constitutional Court was one in which the Constitution was interpreted in such a way as to further unquestioning valorization of the monarchy as the only perspective possible, at the expense of the protection of rights and freedom of expression.

One of the initial concerns when the Constitutional Court’s ruling was announced was whether Arnon, Panusaya, Panupong, and other activists already facing numerous Article 112 cases would also be charged with violation of Article 113, or treason, which carries a maximum penalty of life imprisonment or death. This has not happened. But the potential impacts, both short-term and long-term, of the Constitutional Court ruling on the provision of justice, the rule of law, and the visions of a democratic future that dissidents imagine remain unclear.

IV Working against Arbitrariness and toward the Rule of Law

The ongoing arrests and prosecutions under Article 112 have heightened the risks of questioning power and its unjust exercise in Thailand. While the majority of those accused have ultimately been granted bail, including the leaders discussed earlier – Arnon, Panusaya, Panupong, and Parit – their release has carried the condition of nonparticipation in political protest or other activities that might damage the monarchy. The frequency of protests declined as arrests took place throughout 2021 and 2022, but did not stop completely.

One of the most compelling new groups to emerge is Shattering the Palace (ทะลุวัง), whose primary protest action is to carry out public polls. Activists go to shopping malls, train stations, and selected public events armed with posterboards and small stickers for respondents to indicate their views on various topics about the monarchy. For daring to ask these questions, members of the group have been arrested, charged with violation of Article 112, and subjected to long periods of pretrial detention. One stark example is the case of Tantawan Tuatulanon, released on May 26, 2022, after thirty-seven days of pretrial detention following accusation of violation of Article 112 for live broadcasting and peacefully asking the police questions about the monarchy prior to a royal motorcade. She was on hunger strike for the entire period of her detention in protest at the denial of bail. Her lawyers made four applications for bail for her before the Criminal Court finally assented. She is confined to her home for twenty-four hours per day, must wear an electronic monitoring anklet, and is forbidden from participating in protests or damaging the monarchy.

Two additional members of Thaluwang, Bung and Bai Por, were held for ninety-one days of pretrial detention, including sixty-four days on hunger strike, after carrying out a poll at a shopping mall on whether or not royal motorcades caused inconvenience. They made seven bail requests before it was finally granted; each denial order noted that their lives were not yet in danger from their hunger strike and they were flight risks and would likely continue to engage in similar actions were bail to be granted. During one bail hearing, after being on hunger strike for fifty-four days, the two young women were so weakened by the trip from the Central Women’s Prison where they are being detained that they collapsed and were rushed to the nearest hospital for treatment; the physician on duty reported to the court that they were in “normal” condition. Pretrial bail has long been denied in a majority of Article 112 cases, but the Thaluwang cases are different, both due to the nature of the action deemed to potentially constitute lese majesty and the court’s lack of concern about the health of the detainees. To be clear, while individuals accused of violent crime are routinely granted bail in Thailand, all three Thaluwang activists were subject to denial of bail and arbitrary detention for asking questions and carrying out a poll about royal motorcades.

In the May 2023 general election, the second since the May 2014 coup, the liberal democratic Move Forward Party secured the largest number of votes and a clear popular mandate to form a government. They ran on a platform of policies that included legalization of same-sex marriage, the end of compulsory military conscription, and amendment of Article 112 to reduce the punishment. But very soon after the election it became clear that the monarchy and military-aligned forces would not allow Move Forward Party to form a government. One of the legacies of the NCPO period is that the parliament is composed of 500 elected members and 250 senators who were appointed by the junta. A petition was submitted to the Constitutional Court in late June 2023, alleging that Move Forward Party’s proposal to amend Article 112 constituted overthrow of the government. Like the Constitutional Court petition brought against Arnon, Panusaya, and Panupong, this one verges on the absurd: How could a policy proposal conceivably constitute overthrow? Yet the possible effects of the petition are potentially profound. The petition was brought a week before the planned election of the prime minister in the parliament, and many neutral members of parliament and even some senators who had previously indicated they would vote for Pita Limjaroenrat, the Move Forward Party candidate, opted to abstain, likely out of concern of being perceived to support an anti-monarchy party. Instead, in August 2023, a coalition made up of parties loyal to the military and monarchy, which secured few votes, formed a government and selected a prime minister whose party did not win the popular vote. A year later, in August 2024, the Constitutional Court ruled that the Move Forward Party’s proposal of an amendment to Article 112 constituted overthrow. The party was dissolved and its executive banned from holding political office for ten years.

V Conclusion: Toward a Future Rule of Law

The rise in arbitrariness and attacks on the rule of law in Thailand come at a time when authoritarianism is on the rise across Asia. A military court in Myanmar on February 1, 2021, ended the cautious transition to democracy and brought a sharp crackdown. Dissidents are subject to arbitrary arrest and summary sentencing in secret trials.Footnote ³⁹ Since the presidential election of Rodrigo Duterte in 2016 and with little change following the election of Bongbong Marcos, Ferdinand Marcos’s son, in 2022, extrajudicial killings, attacks on press and academic freedom, and a general climate deleterious to the rule of law have become entrenched in the Philippines.Footnote ⁴⁰ The rule of law in Hong Kong has declined precipitously as China has claimed legal and political control far in advance of 2047, the previously agreed-upon date of incorporation into China. Activists, journalists, and academics are facing increasing prosecutions under the draconian National Security Law for engaging in basic expression of opinion and political rights.Footnote ⁴¹ Compounding the difficulty in stopping the rise of arbitrariness and the violation of human rights is that, unlike the Americas, Europe, or Africa, there are no regional or subregional human rights mechanisms. The governments in the region make it a practice to cite the inviolability of sovereignty whenever they are called upon to criticize their neighbors. While the region remains safe for capital, as Ji Li notes regarding China in this volume (in Chapter 13), it is increasingly unsafe for dissidents.

Writing in the context of Putin’s Russia, Masha Gessen argues that: “In functioning democracies the contradictions between avowed ideals and reality can be and often are called out, causing social and political change. That does not eliminate the built-in gap, but it has a way of making societies a little more democratic and a little less unequal, in spurts. Totalitarian ideology allows no such correction.”Footnote ⁴² The fine-grained framework to examine the rule of law developed in this book by Shaffer and Sandholtz is a key tool to discover and call out gaps between ideals and reality in disparate contexts. Rather than seeing a possible trajectory in which challenges to the rule of law in Thailand, which have been particularly grave since the May 22, 2014, coup, are reversed, the situation remains challenging despite some elements that seem to signal positive developments, such as elections. The Constitutional Court of Thailand’s characterization of peaceful dissent and policy proposals as overthrow, with correspondingly harsh consequences, is an expression of the arbitrary exercise of power par excellence. Our job as scholars is to track, analyze, and criticize the means and methods by which such undermining of the rule of law takes place, as part of our contribution to strengthening it.

I The Evolving Rule of Law with Chinese Characteristics

The development of the Chinese legal system and discourse on law and governance have in the past four decades undergone major shiftsFootnote ¹ that have spawned a great deal of insightful research.Footnote ² However, much of the accumulated scholarship has adopted a state-centered approach, neglecting interest and normative divisions within the regimeFootnote ³ and underappreciating the influence of China’s international context. Authoritarian states are neither monolithic nor static.Footnote ⁴ Shifting dynamics of domestic elite politics change policy priorities and modify the official perceptions and preferences about law and governance, as well as the academic debates. Meanwhile, as in other countries, scholarly debates in China also have direct impacts on the legal reforms and subtle effects on the official narratives about the rule of law.Footnote ⁵ Moreover, post-Cultural Revolution China increasingly interacts with the rest of the world, and the interactions have led to domestic realignment of power and facilitated exchanges of ideas.Footnote ⁶ Thus, the following analytical survey of Chinese legal reform and rule of law discourse incorporates three interwoven aspects: political contestations among Chinese ruling elites, academic debates about law and governance, and China’s interactions with the outside world.

Soon after taking power in 1949, the Chinese Communist Party (CCP) formed an alliance with the Soviet Union and imported its model of legal institutions and legal education. Though the alliance collapsed,Footnote ⁷ the inchoate Chinese legal institutions continued to operate according to the Soviet design, and Soviet-trained teachers dominated Chinese law schools, indoctrinating students with the Marxist and Leninist view of courts as a tool for social ordering and class oppression.Footnote ⁸ The basic institutional structure for socialist rule by law, however, suffered severe damages during the Cultural Revolution (1966–76), which paralyzed much of the state apparatus. At the time, all Chinese law schools were shut down, along with any meaningful academic debate about law and governance.Footnote ⁹

Mao’s death in 1976 paved the way for the ascent of Deng Xiaoping and his allies, who ended the “legal nihilism” and ushered in an era of reform.Footnote ¹⁰ Having personally suffered the chaotic and arbitrary rule of Mao’s totalitarian dictatorship, the reformers deemed rule of man to be “very dangerous, not reliable”Footnote ¹¹ and were determined to reestablish basic legal institutions. For instance, the first order issued in 1979 by the resurrected Standing Committee of the National People’s Congress (SCNPC) amended the Regulations of the People’s Republic of China on Arrest and Detention, which provided better legal protection for individual freedom and imposed more stringent procedural requirements for its deprivation.Footnote ¹² Meanwhile, Chinese courts and procuratorates reclaimed their authority, enforcing a growing number of statutes aimed at preserving political, social, and economic order. This period between the end of the Cultural Revolution and Deng’s Southern Tour in 1992 featured pragmatic institutional experiments, policy uncertainties, and intense political debates. While a faction of the ruling elites advocated political reforms that would create a more liberal and democratic state relatively separated from the CCP,Footnote ¹³ the conservative faction strongly opposed the “corrosive influence of bourgeois ideas.”Footnote ¹⁴

This same period witnessed a sea change in Chinese academic discourse on law, as law schools and departments reopened and law professors were reinstated. While many of them received direct or indirect Soviet-style legal training,Footnote ¹⁵ China’s opening-up policy allowed legal scholars access to Western political and legal thought. Having personally suffered the lawless atrocities of the Cultural Revolution, many became highly receptive to core tenets of liberalism and the rule of law.Footnote ¹⁶ For them, the ultimate objective of legal reform in China should be to achieve legal constraint over state power. In that regard, their voice resonated with a cohort of reformers among the CCP leaders. For instance, Peng Zhen, then chairman of the Legal Committee of SCNPC, insisted that “the law be superior to the Party.”Footnote ¹⁷ The normative tensions among the ruling elites manifest in the drafting and promulgation of the Administrative Litigation Law of the People’s Republic of China in 1989, which for the first time in Chinese history codified a rather comprehensive statutory procedure for victims of governmental mistreatment to seek legal remedy,Footnote ¹⁸ yet at the same time exempted actions taken by the CCP from such challenges.

Deng’s Southern Tour in 1992 moved the factional balance decisively in favor of the reformers, who undertook a series of structural reforms.Footnote ¹⁹ To establish a “Socialist market economy,” a wide range of enabling institutions were put in place that embodied major attributes of their Western equivalents. To expedite and consolidate the reform, the pro-market faction negotiated China’s entry into the WTO.Footnote ²⁰ Its subsequent integration into the global economy further strengthened the reformers and facilitated the implementation of their policy agenda.Footnote ²¹ Meanwhile, the official narrative on law shifted from enacting laws and reestablishing basic legal institutions to promoting the “rule of law,”Footnote ²² and considerable efforts were made to professionalize the judiciary and elevate its status.Footnote ²³ For instance, the Judges Law of the People’s Republic of China was enacted in 1995 and established merit-based staffing of Chinese courts, which used to recruit from retired military officers without any formal legal training.Footnote ²⁴ Also, as shown in Figures 13.1 and 13.2, the number of civil and administrative lawsuits surged in the first half of this period. However, the official narrative of legal reform no longer contemplated the separation of the CCP from the state organs, including the judiciary. Without major reform of the political–legal structure, Chinese courts, subject to various institutional constraints such as personnel and resource control by local CCP leadership and other government bodies, proved less effective in resolving disputes than expected or portrayed by the reformers. And, the number of civil and administrative cases plateaued in the second half of this period (see Figures 13.1 and 13.2).

Figure 13.1

Number of first instance civil and criminal cases in China (1978–2020).

Source: China Statistical Yearbook 2021 [Table 24-18], www.stats.gov.cn/tjsj/ndsj/2021/indexch.htm

Figure 13.2

Number of first instance administrative cases in China (1983–2020).

Source: China Statistical Yearbook 2021 [Table 24-18], www.stats.gov.cn/tjsj/ndsj/2021/indexch.htm

The contemporaneous debates in the legal academy largely continued the liberal trajectory.Footnote ²⁵ Growing interactions with international actors socialized Chinese officials, scholars, and practitioners in varying degrees to core liberal norms.Footnote ²⁶ At one point, Western legal theories so dominated the jurisprudential discourse in China that a prominent legal scholar expressed grave concerns about his colleagues’ collective “cultural aphasia.”Footnote ²⁷ However, this marked shift in discourse and massive institutional transplantation also sparked backlashes. The tensions peaked and triggered nationwide debates in 2005 and 2006 when the reformers’ plan to enact a property law based on German law principles was temporarily shelved after a legal scholar trained in the former Yugoslavia published an open letter alleging the protection of private property ownership would undermine the socialist nature of the Chinese political system as enshrined in the Constitution,Footnote ²⁸ galvanizing fierce resistance from the conservative faction. While the national legislature eventually adopted the property law as proposed, Chinese socio-legal scholars have since demonstrated more interest in value-neutral comparisons with foreign legal systems,Footnote ²⁹ as well as in rediscovering the values of China’s domestic institutions for resolving disputes and delivering substantive justice.Footnote ³⁰ Interestingly, as shown in Figure 13.3(a), the rule-of-law discourse outside China also reached a turning point around the year 2006. Given how tightly China had been integrated in the global system at the time, the rebalancing of the rule-of-law debate in China might have simply reflected the global trend.

Figure 13.3(a)

Google NGram search result by “rule of law” from 1949 to 2019: frequency with which the term appeared in English publications during the search period.

Figure 13.3(b)

Google NGram search by various Chinese terms relating to rule of law, 1949–2019: frequencies with which the terms appeared in Chinese publications during the search period.

The power dynamics within the Chinese ruling elites tilted further in favor of the conservatives after 2008, when the global financial crisis severely eroded the normative appeal of free market capitalism and its enabling institutions, and the massive stimulus program implemented by the Chinese government to salvage the economy materially empowered the state sector. A systematic “turn against law” ensued.Footnote ³¹ The leadership began to emphasize the role of Chinese courts to construct a “harmonious society.”Footnote ³² Remarkably, an official without any formal legal training was appointed president of the Supreme People’s Court in 2008 and promoted a “Three Supremes” doctrine: “in enforcing the law, judges should take into account first the supremacy of the Party’s undertaking, second the supremacy of the popular interest, and only third the supremacy of the law.”Footnote ³³ During this period, the academic discourse on law and governance also intensified.Footnote ³⁴ While the “legally trained elites” continued to favor “more expansive, liberal and state-constraining conceptions of law,”Footnote ³⁵ critiques of the liberal legal order began to enjoy a larger audience. The critiques also became more sophisticated, frequently quoting and referencing works by prominent US legal realists and critical legal theorists.Footnote ³⁶ After decades of searching for ideal institutional models elsewhere, first in the Soviet bloc, then the Western world, a growing number of Chinese legal scholars started to look inward for theoretical inspiration.Footnote ³⁷

After 2012, when Xi Jinping assumed top Party leadership, the CCP embarked on a multiyear campaign to build “socialist rule of law with Chinese characteristics.”Footnote ³⁸ Having managed to consolidate and expand his power to a level comparable to that of Mao,Footnote ³⁹ Xi advocated for a “comprehensive rule of law” (or, in Xi’s words, “containing power in the cage of institutions”Footnote ⁴⁰) and constitutional governance.Footnote ⁴¹ However, the “rule of law” so propagated deviates from the liberal concept,Footnote ⁴² as it is “predominantly about fortifying and legitimizing the CCP’s leadership through law over state institutions,”Footnote ⁴³ constituting a form of rule by law. The campaign aimed to have the Party “lead all rule of law activities including legislation, law enforcement, administration of justice and law observance.”Footnote ⁴⁴ The CCP supremacy was finally enshrined in the Constitution.Footnote ⁴⁵ And the official rhetoric publicly denounced the “erroneous” Western legal models.Footnote ⁴⁶ In 2020, during the first central CCP conference on work related to “overall law-based governance,” Xi summarized his thought on the rule of law in “eleven upholds,” the top three of which were “upholding CCP leadership,” “taking a people-centered approach,” and “staying on the path of the socialist rule of law.”Footnote ⁴⁷ Meanwhile, the official narrative began to integrate the socialist rule of law with “rule by moral virtue.”Footnote ⁴⁸ Some scholars view this moralistic turn in the official rhetoric as nothing but a revival of traditional Chinese philosophies on governance – that is, the coexistence of legalism, which emphasizes governance with legal instruments, and Confucianism, which stresses governance through moral guidance and rites,Footnote ⁴⁹ repackaged by sleight with esoteric Marxist concepts such as the dialectical unity of two terms with conflicting meanings.Footnote ⁵⁰

All these attributes of the Chinese legal reform under Xi’s leadership suggest that China is moving away from the rule-of-law concept defined as imposing legal constraints over powerholders.Footnote ⁵¹ The power of Xi and his allies, wielded through the CCP decision-making mechanism, is free from any legal restraint.Footnote ⁵² Nonetheless, the CCP is increasingly relying on legal institutions to govern,Footnote ⁵³ and, in the process, Xi’s campaign has shown positive effects,Footnote ⁵⁴ as it provides more accessible forums for challenging low-level exercise of power, enhances predictability of published rules, and promotes reason-giving.Footnote ⁵⁵ These effects are, for instance, the centralization of the court system, to shield judicial decisions from local politics;Footnote ⁵⁶ rendering judges individually accountable, arguably to enhance independent adjudication and reduce shirking and corruption;Footnote ⁵⁷ mitigating substantive review for case registration, to enable easier access to justice; and a broadened scope for legal challenges of government malfeasance, to rein in abusive officials.Footnote ⁵⁸ As a result, the arbitrary exercise of power may have abated in certain issue areas that do not pose a threat to the regime. Routine civil cases, for instance, may receive neutral and fair treatment in Chinese courts, especially when the litigants are similarly situated in the power hierarchy.Footnote ⁵⁹ The same is true for lawsuits against local government actors, the number of which surged in 2015, when the case registration reform took effect (see Figure 13.2).

Meanwhile, however, cases of significant social, economic, or political consequences continue to be avoided or “harmonized.”Footnote ⁶⁰ For instance, the implementation of the zero-COVID policies has upended the lives of millions of people in China, yet courts have been largely silent. Businesses can be shut down and individuals locked up without minimal due process or any legal remedy. Moreover, the prosecution of activists in China has been growing, often with charges based on the ambiguous crime of “picking quarrels and provoking trouble.”Footnote ⁶¹ In short, the “comprehensive rule of law” campaign remains contested in terms of its impacts,Footnote ⁶² with many considering its effects to be “partial,”Footnote ⁶³ “uneven,”Footnote ⁶⁴ or “dualist.”Footnote ⁶⁵ That being said, scholars generally agree that the campaign’s ultimate goal is no more than instrumentalist governance by law and regime preservation.

In parallel, partially due to the resurrection of personalistic authoritarianism under Xi and the disrupted factional power balance,Footnote ⁶⁶ the space for academic debates shrank considerably.Footnote ⁶⁷ The state tightened its control over views inconsistent with the government’s rhetoric, and the escalating geopolitical rivalry with the United States alienated Chinese legal scholars more receptive to liberal values or leaning toward normative pluralism. Nonetheless, rule-of-law debates continued among Chinese scholars who have become well versed in relevant Western literature on law and governance.Footnote ⁶⁸ The liberal voice has been subdued, but not extinguished.Footnote ⁶⁹ And more scholars have joined in the search for novel alternative theories.Footnote ⁷⁰

Finally, China’s interactions with the outside world also have altered its state ideology. Granted, the components of orthodox Marxism advocating class struggles have lost practical relevance and been largely abandoned,Footnote ⁷¹ hence the widely accepted claim that China has “entered a post-ideological age.”Footnote ⁷² However, basic causal beliefs and worldviews integral to dialectical materialism and historical materialism still offer the most salient cognitive framework for Chinese ruling elites in interpreting complex and ambiguous social and political phenomena such as law’s role in, or relationship with, governance.Footnote ⁷³ Briefly, political institutions, as a category of the societal superstructure, are determined by the mode of production, and legal institutions are regarded as tools of oppression and regime preservation employed by the ruling class. Because members of the Chinese ruling elites must demonstrate mastery of the state ideology in order to advance in the fiercely competitive political system,Footnote ⁷⁴ they have internalized the core ideological remnants, which, I argue, gives rise to three shared perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes.

To be concrete, the Chinese ruling elites have generally perceived law and legal institutions as a means to achieve other objectives,Footnote ⁷⁵ be it political oppression,Footnote ⁷⁶ reducing corruption,Footnote ⁷⁷ facilitating an efficient market economy,Footnote ⁷⁸ maintaining social order and stability,Footnote ⁷⁹ sustaining regime legitimacy,Footnote ⁸⁰ enhancing the government’s international reputation,Footnote ⁸¹ enabling modernization,Footnote ⁸² or symbolizing social and cultural progress.Footnote ⁸³ Teleologically conceptualized,Footnote ⁸⁴ the rule of law has never acquired the same normative appeal in China as in the West.Footnote ⁸⁵ Additionally, the shared view of economic determinism underlies Chinese government policies and the official narrative about law and governance. Reformers and conservatives alike contend that the characteristics of economic relations in China necessitate a more professional and independent judiciary or, on the contrary, justify preserving the institutional status quo, or even reverting to Mao-era practices.Footnote ⁸⁶ Moreover, prior studies in China have either concluded, or adopted the assumption, that modes of production determine legal institutions in a linear fashion, so economically developed regions and countries will feature professional and independent courts, whereas developing ones will be characterized by dysfunctional courts and incompetent judges.Footnote ⁸⁷ As will be demonstrated, these ideology-shaped perceptions also modify China’s interactions with the international legal order.

To summarize, this first part of the chapter has offered a nuanced recounting of Chinese legal reform and its evolving rule-of-law discourse by examining the contestations among China’s ruling elites and the influence of external normative and geopolitical environments. Xi’s assumption of CCP leadership ushered in a new era of legal reform marked by greatly tightened CCP control and centralization of judicial power. Meanwhile, the CCP has exhorted Chinese officials and scholars to “vigorously participate in the formulation of international norms[,] … strengthen [China’s] discourse power and influence in international legal affairs[,] … [and] use legal methods to safeguard [China’s] sovereignty, security and development interests.”Footnote ⁸⁸ And empirical data indicates that in 2012, when Xi became the party secretary, the Chinese rule-of-law discourse clearly diverged from that of the Western world.Footnote ⁸⁹ All these changes render it timely and important to analyze China’s actual or potential impacts on the international legal order.

II Impacts on the International Rule of Law

During the Cultural Revolution, China was largely isolated from the rest of the world, and the ruling elites were deeply skeptical and inimical toward both the US-led Western international order and the Soviet-dominated rules governing relations between states within the Communist bloc.Footnote ⁹⁰ Running an autarky, the Chinese government saw little need for international rules to facilitate cross-border transactions. Moreover, the CCP leaders, steeped in orthodox Marxism, regarded the existing international laws as primarily a hegemonic instrument of oppression.Footnote ⁹¹ As noted, the post-Cultural Revolution reforms reconnected China with the international community, giving rise to functional needs for international agreements. While some members of the ruling elites continued to view international institutions as favoring the United States and its allies,Footnote ⁹² and rejected the rules of the game as they were made when China was “absent from the world stage,”Footnote ⁹³ others, realizing the necessity and benefits of accommodating the US hegemon, began to socialize with the international legal community. After Deng’s Southern Tour, the Chinese government, then dominated by reformers, stepped up its efforts to integrate into the global economy by, among other steps, joining the WTO.Footnote ⁹⁴ Today, China is a party to hundreds of bilateral and multilateral treaties in a broad range of subject-matter areas, such as anti-corruption, arms control, environmental protection, and avoidance of double taxation.Footnote ⁹⁵ The Chinese government also has assumed a more prominent role in drafting and amending international agreementsFootnote ⁹⁶ and aspired to profoundly reshape the international legal order.Footnote ⁹⁷

China’s rise and its actual or potential impacts on international law and institutions have stimulated heated debates. Some contend that China’s growing influence will have significant, detrimental effects on the liberal international legal order.Footnote ⁹⁸ Others view China as a manageable threat.Footnote ⁹⁹ By contrast, some scholars emphasize the positive effects of China’s participation in making and reforming international law.Footnote ¹⁰⁰ Still others have taken an empirical approach, documenting China’s evolving and varying policies regarding international law and international institutions.Footnote ¹⁰¹ Still others consider international law largely irrelevant in the China-driven shift of global geopolitics.Footnote ¹⁰²

While consensus is lacking, the bulk of the literature features a shared methodological approach – treating the sovereign state as the unit of analysis.Footnote ¹⁰³ Such a simplified conceptualization, commonly adopted by realists in international relations, makes the corresponding analytical model too blunt a tool to explicate the heterogeneity of the interactions between multiple relevant Chinese actors and non-Chinese actors in various international legal fields. Again, applying the analytical frame of transnational legal ordering,Footnote ¹⁰⁴ this chapter contends that China’s impacts are more nuanced and varied, and researchers will gain more insights by penetrating the sovereign facade and focusing on different cohorts of key Chinese international law actors. Given the subject matter of the field, lawyers, legal scholars, and legally trained government officials often play important roles. Moreover, depending on the specific issue area, conservative state actors lacking any formal legal training and two types of organizational actors – business organizations (i.e., domestic and multinational firms) and civil society organizations (e.g., NGOs) – may also occupy the interfaces between China and international law. These Chinese actors differ in their interests, internalized norms, ideologies, and causal beliefs, which shape their interactions with and impacts on international law.

Let me begin with interests. At the risk of overgeneralizing, Chinese lawyers seek higher income and professional status, which are intimately interconnected; Chinese legal scholars desire status and prestige associated with their academic and policy impacts and, to a lesser extent, higher income; Chinese government officials, much like their US counterparts, typically crave power and status and avoid risk; business organizations in China maximize profits, though state-owned firms often prioritize government policy objectives; Chinese civil society organizations, heavily state-dependent and systematically subdued, seek to make issue-specific impacts in areas tolerated by the authoritarian government.

Additionally, embedded in the Chinese institutional context, these actors naturally adopt its dominant normative framework,Footnote ¹⁰⁵ which enables them to define, interpret, and appropriately carry out interactions with foreign international law parties. However, the actors may deviate from the default set of schemas and norms because of extensive socialization with outside or subcultural groups. Among these key groups of Chinese actors, lawyers and legal scholars tend to be more socialized in the global legal community. As alluded to earlier, the post-Cultural Revolution Chinese legal ecosystem evolved along with expansive statutory and theoretical transplantation from Western countries, and in the past few decades a growing number of Chinese law students and practitioners have received advanced legal education in European and US law schools. After years of intensive socialization, many among these two groups have internalized the core elements of international legal norms.

The exposure of Chinese government actors to the outside world varies widely. Reformers tend to dominate in some functional areas (e.g., trade, foreign affairs, and finance), where senior government officials are legally trained, globe-trotting career bureaucrats; some have even received degrees from prominent foreign universities.Footnote ¹⁰⁶ In other state organs (e.g., security and defense), the conservative faction reigns, and the high-ranking officials rarely engage extensively with foreign peers, let alone with members of the international legal community. Thus, their internalized domestic normative framework remains largely intact.

The exponential growth of the Chinese economy in the past few decades has projected numerous Chinese firms onto the global stage for trade and investment, exposing them to different business and societal norms. The extent of their normative adaptation, however, turns on multiple factors, including, among others, the degree of exposure, the importance of the foreign market, and the institutional distance they must traverse.Footnote ¹⁰⁷ Nonetheless, most Chinese non-state-owned firms have proved highly pragmatic and adaptable in finding efficient solutions to their cross-border business problems.Footnote ¹⁰⁸

Along with China’s reform and opening-up, civil society organizations with tight, extensive international connections mushroomed from bare existence. Many such organizations are clan-based and historically have played a key role in attracting foreign direct investment. In the past three decades, civil society organizations also emerged to push for various legal reforms, and before Xi consolidated his power, US and European NGOs (e.g., the Ford Foundation and the American Bar Foundation) used to fund rule-of-law-themed programs in China, many of which were implemented in close collaboration with China’s domestic organizations.Footnote ¹⁰⁹ In short, before the Chinese government tightened its control over foreign NGOs, they maintained broad and close contacts with social legal organizations in China, immersing them in the global legal community.