Theorizing Output-Oriented Constitutional Governance
March 25, 2026
[Editor’s note: this is the second of four posts commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].
Michaela Hailbronner’s new book has an evocative, almost filmic title that gestures towards a broad horizon of human interests: “The failures of others.” It is very well constructed: logically structured; written with efficacy and clarity; assertive but modest and careful in its contentions. The analysis is supported on a solid background of readings and debates that have marked the destinies of public law over the last decades. It reflects the kind of broad knowledge that singles out a responsible comparatist scholar, and a depth of view that is not easy to find in times of scholarship subjugated by the prevailing, hetero-imposed dynamics of “publish or perish.”
The focus of the book is use of “arguments from failure” in public law. As Hailbronner observes, institutions or power branches sometimes signal the failure of other branches or institutions in fulfilling their duties as a reason to expand their own radius of action. She identifies the differences between arguments from failure and invocations of emergency powers or implied powers, which share with the former an underlying logic of output-legitimacy. In her view, we should take arguments from failure seriously as a matter of public law –we should recognize them as legal doctrines. Yet because they come with substantial risks of abuse, she observes, their role should be limited by a set of normative constrains. First, they have a place only in contexts where there are interinstitutional relationships grounded on the ideal of working collaboratively together to achieve a shared purpose (living under a constitution is one such a context, though others may exist). Second, they must be, as she poses it, “safe, legal and rare” (read all about it at pp. 41-70). Third, they must be proportional and satisfy the tests of functionality, necessity and reasonable costs. The legitimacy of extending one’s power is connected to the legitimacy of the type of action that is taken in response.
After their preliminary clarification and evaluation in Part I, the book explores the deployment of arguments from failure in three domains: national (Part II), supranational and international (Part III). In the national domain, the “expansive” practice of structural adjudication engaged by courts in the US, India, Colombia and South Africa is examined under the prism of arguments from failure. Climate litigation is also portrayed as an area where the need for innovation often sustains expansive judicial activity. In the supranational domain, the focus is on the use of functional, “effet utile” doctrines, which have been so important to fortify the role of European Union law. In the international sphere, Hailbronner analyzes the Uniting for Peace Resolution of the UN General Assembly, issued in the 1950s before inoperativity of the Security Council.
The book offers a wonderful promenade across theoretical discussions, judicial doctrine, political events, and episodes of legal mobilization. The rich panorama of contemporary public law parades before our eyes. Yet, for me, its main contribution is clearly theoretical. The book demonstrates that it is possible to theorize and evaluate output-oriented public law, something crucial, in my opinion, in view of the turn constitutional and international studies have taken in recent times. In the last decades, we have evolved from an academy predominantly interested in the understanding of constitutional normativity/bindingness and, later on, in the tasks necessary to spell out the implications of constitutional substance (theories of interpretation, proportionality, etc.) to debates predominantly interested in impact and effects. In my view, this is a logical evolution: once the bindingness of constitutions (or treaties) and their standard normative implications became undisputed, it was just natural to ask what difference do these constitutions (and treaties) really make in society. A boom of scholarship focused on efficacy, implementation, enforcement, remedies, etcetera, then ensued, accompanied by a methodological turn towards interdisciplinarity that placed lawyers in dialogue with political and social scientists.
This book convincingly illustrates that law and legal theorization retain an important place in this output-oriented universe. It is an error to constrain constitutional theory to input-oriented debates examining who can legitimately do what, based on which law-related ingredients. Because the vast universe of constitutional implementation needs, yes, indicators, regressions, tables and figures, but also some analytic and evaluative order. Hailbronner provides instruments to that effect while claiming the effort as a genuinely legal one. She takes empirical scenarios and institutional outputs as centrally relevant in devising models of constitutional (public law) governance, yet dialogues with them under the guidance of a deontological frame—importantly influenced by political process theory. While the goals and motivations are different, her work shares space, for instance, with Mitch Berman’s theorization of constitutional decision-rules (identified as crucial yet generally overlooked inhabitants of the “constitutional implementation space”). They should be joined by many others.
The book is, concomitantly, a convincing vindication of comparative theory—i.e. of the fecundity of theorizing law against the background of comparative developments. The book actually deploys an exercise of Rawlsian “reflexive equilibrium” between the theoretical/conceptual proposal contained in Part I and the “case studies” analyzed in Parts II and III. This seems to me indeed the only sensible way to theorize, as opposed to the traditional practice of grounding theory on imagined abstractions and assumptions –a recipe for falling prey to problematic biases. This is the function of the comparative component of the book. If it was a “comparative law” book, we could question perhaps the selection of jurisdictions in Part II–very close, as the author acknowledges, to the habitual suspects covered by scholarship written in English. Yet they make for a perfectly relevant selection from the point of view of exploring structural adjudication under the theoretical prism that orients the research.
What is, in my view, the book’s main limitation? Well, the book theorizes scenarios and practices that, sadly enough, are now receding. Hailbronner theorizes a world where the problems derive from individual or collective disfunction (“what happens when those holding political power fail?”, p. 23) within a wider scenario that is not yet chaotic. She explores what to do in contexts where constitutional/supranational/international frameworks still have substantial integrity and still embody a shared project based on law, oriented by basic values, and supported on continuous interactions at the supra-state level. As we know, however, in times of autocratic legalism, constitutions are increasingly polluted by authoritarianism, illiberalism and all kinds of elements turning them into a battlefield, rather than a collaborative framework. Many constitutions have been politically weaponized in recent years (think of the Mexican one after the 2024/2025 reforms), multilateralism is at its lowest and international structures are weak, increasingly coopted or openly inoperant. In this context the sort of balanced distribution of governance powers and responsibilities Hailbronner so carefully outlines looks increasingly utopian.
We can only hope that the world will become soon saturated (and overdisgusted) with the experience of living at the impulse of public dynamics in whose context the membrane separating law from politics is paper thin or has entirely ripped. When law re-gains the role it deserves—as Owen Fiss would put it—carefully crafted (and morally and politically sensible) proposals like the ones contained in Hailbronner’s book will illuminate the way forward.