This chapter introduces the book’s central theoretical framework: the dual state. Building on and extending Ernst Fraenkel’s classic concept, it offers a new explanation for the persistence of judicial independence in regimes hostile to liberal norms. The chapter argues that a stable dual state depends on containing prerogative interventions through centralized discipline and restricting normative jurisdiction through dejudicialization – both of which require a high degree of political consolidation. By reframing the autonomy-control relationship as a function of regime strength, this reconceptualization resolves a long-standing puzzle in the study of judicial politics under authoritarianism. While grounded in the Chinese case, the framework offers broader insights into the institutional logic of authoritarian legality across regimes.

This chapter examines two major political campaigns under Xi Jinping – the Law-Based Governance Campaign and the Education and Rectification Campaign – as instruments for curbing unsanctioned extrajudicial interventions in the judiciary. Rather than relying solely on institutional reform, the Chinese Communist Party mobilized its organizational apparatus to discipline judicial and administrative officials, compelling compliance with formal legal processes. These campaigns reinforced central control by targeting informal practices that had long undermined court autonomy, such as local interference and internal favoritism. Drawing on the Party’s unique capacity to shape bureaucratic incentives and impose sanctions, these campaigns functioned as top-down mechanisms to insulate the normative state from prerogative encroachments. Together, they helped consolidate a formal legal space by mobilizing political power not against, but in favor of, judicial autonomy – albeit within the bounds of Party supremacy.

Chapter 5 makes the methodological claim that before turning to the Court’s practice, one should use insights from political science, sociology, and constitutional law to better delineate the domains of law and policy that once in power (deliberation and the media, judicial independence, and electoral regulation), and how erosion observed in Hungary and Poland reflect in these domains reflect the normative argument of Chapter 3. This excursion importantly highlights the relevant and corresponding portions of the case law (Articles 10–11, Article 6, Article 18, and Article 3 Protocol 1, resp.) to be analysed, and which aspect of these articles need particular attention, an aspect I label ‘infrastructural’.

The influence of the People’s Republic of China (PRC) on the law and legal order of the Hong Kong Special Administrative Region might seem not to be a case of inter-Asian law because it occurs within a single jurisdiction. Yet, Beijing has employed a wide range of means to shape Hong Kong’s legal order, ranging from making or interpreting PRC law for Hong Kong, to mandating or pressing for local lawmaking in Hong Kong, to more diffuse influences on Hong Kong’s legal order and its context. Chinese influence has made Hong Kong law less liberal and democratic and more like the PRC’s. The China–Hong Kong case shows the spectrum of modes of inter-Asian legal influence, the complexity of the relationship between transplants or exports of legal models and legal influence, and the issues that lie ahead in an era of possible competition between China and the United States/the West for legal influence.

This chapter has two parts. The first part investigates how the Party controls courts. It finds that the Party maximizes its political control over judicial affairs by normalizing its political prerogative in judicial decision-making. The normalization process takes two steps. First, all judges within a court are embedded in a chain of command—from Party leaders to court leaders, divisional heads, and frontline judges—tasked with processing and translating political directives into partial judicial outcomes that serve Party-state interests when needed. The legality of these demands or their immunity from legal scrutiny is derived from the Party’s political prerogative. This practice is then replicated across all courts and among all judges nationwide. The second part of this chapter analyzes reported cases of judicial corruption to identify what has caused the spread of judicial corruption. It concludes that the root cause is the very normalization of the Party’s political prerogative. Because this prerogative is inherently arbitrary and vulnerable to abuse, its institutionalization creates systemic opportunities for corruption across the political-legal apparatus. As a result, what begins as political control ultimately facilitates the pervasive spread of judicial corruption.

The Indian constitution was poised to create a new map of power, transforming the relationship between existing state agencies and new authorities. This chapter demonstrates how the individuals staffing the state apparatus were not mere spectators, passively following the constitution-making process, but actors who actively sought to influence, change, or resist the emerging constitutional order through both public and private channels. The success of the future constitution of India required a smooth transition of the organs of the colonial state to the postcolonial order. Turning their loyalty and ambitions to the new state and its constitutional order was not an obvious outcome in 1947. The chapter examines how provincial legislators sought to guard their autonomy; how the higher judiciary endeavoured to protect their judicial independence; the contested constitutional status of Delhi; and finally, how the ‘neutral’ bureaucracy who were managing the process of constitution making actively sought to defend their own jurisdiction and interests at the time. This process, which paralleled the integration of territories, led to the functional integration of the units of the state.

In this chapter, we examine how both variation in levels of judicial independence and in the partisanship of litigants affects citizens’ willingness to punish executives who ignore courts. We again test the partisanship-centered account against our theoretical framework. Leveraging the presence of abstract review in Germany, Poland, and Hungary, we demonstrate that judicial independence continues to be a prerequisite to judicial efficacy, even with the appearance of a discernible influence from partisanship. Our results in this chapter suggest that judicial review holds the promise – at least where courts have high levels of judicial independence – to constrain executives even in contexts where partisanship is heightened.

In this chapter, we examine the effects of judicial review across citizens. We find that, when courts enjoy high levels of judicial independence, their rulings’ efficacy is amplified among citizens who have a strong regard for the rule of law; when citizens have low levels of support for the rule of law, the effect of a court’s ruling is muted. For courts that lack judicial independence, even those citizens who hold the rule of law in the highest regard are unaffected by a court’s determination that that an executive’s behavior is unconstitutional. Additionally, we explain how the efficacy of judicial review varies based on the public’s approval of the executive whose policy the court reviews. Notably, we find that the public opinion constraint on executives comes from their supporters, not their opponents. These findings point to an important implication: political sympathy for the executive may not necessarily be the Achilles heel of judicial efficacy it is often portrayed to be.

This chapter ties together our theory and analyses to draw general conclusions and to chart the path for future research. We discuss the implications of our findings for the broad set of research areas we engage, including theories of judicial independence, models of executive unilateral action, and the relationship between the rule of law and democratic entrenchment. We highlight strengths and weaknesses of our findings and research design and suggest paths for other scholars to move this research forward. We see many additional opportunities to interrogate our theory and its implications in other places, on other issues, and in other settings to facilitate a broader understanding of when and how courts are efficacious.

This chapter presents our research design. First, in recognition of our theory’s emphasis on judicial independence, we select four cases – the United States, Germany, Hungary, and Poland – that vary in their levels of judicial independence but share important political, legal, and socio-economic characteristics. We use surveys of elites and the public to demonstrate that variation in judicial independence is observed by experts and citizens alike. Second, the chapter establishes the crucial role the COVID-19 pandemic plays in our research design. The global pandemic presented a unique and fleeting opportunity to probe citizens’ reactions to rule-of-law violations because it produced real threats to the rule of law in ways that were felt simultaneously and similarly around the world. Third, we discuss the benefits of using survey experiments for a study like ours. Finally, we introduce the four countries in detail, describing their general political characteristics, the institutional characteristics of their constitutional courts, and their handling of the pandemic.

Even where a public consensus exists about the appropriate bounds of constitutional action, citizens’ capacity to punish executive overreach is not guaranteed. People often lack information about possible constitutional transgressions, and imposing meaningful political penalties for overreach requires coordinated action among citizens. We argue that courts are key to overcoming these obstacles: under the right conditions, courts, through the use of judicial review, are uniquely positioned to alert the public of constitutional transgressions and thereby transform the public’s support for the rule of law into a guardrail against executive overreach. We suggest judicial independence enhances the ability of courts to signal that an executive has gone too far. By contrast, courts with low levels of judicial independence are impotent: their decisions are not credible enough to affect citizens’ attitudes. We also expect the rulings of independent courts to be most effective among citizens who have a high level of support for the rule of law and to persist even in the face of stark partisan polarization.