“The Failures of Others”: Michaela Hailbronner’s Reply to Pou Giménez, Roberto Gargarella and David Landau.

May 14, 2026

[Editor’s note: this is the final post commenting on Michaela Hailbronner’s new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law (Cambridge University Press, 2025)].

I am very grateful to Francesca Pou Giménez, Roberto Gargarella and David Landau for taking the time to read and engage so generously with my book. I have benefitted much from reading their own important work over the last few years.

My book started from an observation that courts often act in particularly bold ways when other institutions have failed in some obvious way. That observation stayed with me, and I started noticing in other contexts too. But it seemed we didn’t have a very good grasp of it – and this is the gap I wanted to address in the book. I wanted both to showcase widely varying examples of such arguments of failure – from international to domestic law, from courts to parliaments – but also to provide a normative framework for how to think about and evaluate them. This kind of argument is, after all, easy to abuse: just think of how military coups invariably claim to respond to the failures of civilian government to meet the needs of the people.

Yet the resulting book comes with a number of limitations, as the three reviews accurately point out. Gargarella misses a theory of democracy and an account of judicial failures. Pou Giménez points to the way in which the fabric of the rule of law framework underlying the book has frayed so much in some parts of the world that arguments from failure are really no longer exceptional or perhaps even no longer needed. And Landau argues for the need to develop an experimentalist ethos, and to pay more attention to the how-to-questions and the countervailing risks of judges deferring too much.

I think that all of these observations ultimately point to a broader one, namely the limitations of the kind of universal account of arguments from failure which I offer in the book, which operates at a fairly high level of abstraction.

It seemed to me that, at that level of generality, I could not usefully put forward a thicker theory of democracy, beyond the relatively thin account of representative democracy provided in the book. To the degree that this implies, as Gargarella writes, that even if we fixed our dysfunctional institutions, “our democratic problems would remain identical to those we suffer today”, this is entirely accurate, but it is also intentional. I agree we should think about improving our democracies, but I don’t think that should be primarily the task of courts, which, as Gargarella mentions, might themselves be affected by problems. The interventions in cases of failure I discuss mainly seek to address concrete problems, rather than generally improve or indeed replace existing institutions or indeed democracy itself. Broader considerations of institutional reform may of course matter to the question how institutions might respond in concrete cases of failure, in particular with regard to the design of judicial remedies. So in some cases, they may end up doing those things, as Landau rightly points out. But I don’t think they have to and this isn’t where I place the emphasis. In other words, what the book mainly discusses interventions that serve as a band-aid for institutional dysfunction, rather than reconstructive surgery on the system.

Landau and Pou Giménez also highlight the need to think more, not just about the basis on which institutions may intervene, but to stress that sometimes they should indeed intervene and say more on the question of how to do so successfully. I agree with this point which may have got lost somewhat in the book with its emphasis on the elements of these arguments rather than their outcome. In fact, when I started writing this, one of my aims had been to put forward an argument for structural interventions in Germany, but this got sidelined in the course of writing. That said, I do think an argument for a constitutional duty to act here can be a tricky thing. To argue in terms of constitutional theory for the existence of a constitutional obligation to violate legal and potentially even constitutional rules – for this is what arguments from failure entail – seems to me to overstretch what constitutional theory and constitutional law can usefully and credibly offer – but then again, I am not sure this is what Landau and Pou Giménez even have in mind. But where intervention on the basis of failure can be defended in constitutional terms, such interventions should often be not just defended, but encouraged – on this I certainly agree.

Regarding the how-to-question, this is indeed a gap in the book to some extent, but again good answers here will have to be very context-dependent. Of course, there has been some work done on this already. Landau highlights some important insights from that literature in his reply, such the degree and importance of civil society networks and of allies more broadly, and we might add broader structural conditions for civil society networks to flourish, such as certain rights infrastructures but also funding etc. Yet there are also many broader cultural and political background conditions that would need to be fed into such an analysis, and thus it seemed to me that ultimately answers would have to be fairly situation-specific. That said, I fully agree that this kind of work is very important and necessary going forward, and others working on structural reform litigation have already made important strides in this direction.

Finally, as Giménez and Landau suggest, there is a question if it still makes sense to treat arguments from failure as something exceptional at a time where many constitutional systems are increasingly unstable. Perhaps the book is even a little utopian, as Giménez wonders. I have several different answers to these questions. My first reply is that it probably shows that the book was written by someone who has lived in Germany for the last ten years. In that context, I would venture to suggest, the book is very provocative and I suspect most German readers will be highly suspicious of my argument (perhaps a good sign?). The problem might look very different when viewed from other legal cultures or from other places, where extraordinary circumstances may have come to feel rather more ordinary.

But even in cases where interventions in cases of failure have become more commonplace, as long as (for example) courts still justify their expansive actions in terms of governmental failure, this speaks to the fact that they don’t consider their actions as routine. They don’t think the context is constitutionally normal, even if threats and attacks may be become normalized. So even here, I think the need for special justification persists.

On the other hand, if this really is no longer the case, then legal meanings and mandates have shifted and institutional roles have been revised. If institutions then act in accordance with their new roles, this simply represents legal change, and the need for special justification has ceased. We might still refer to the failures by others to understand why the role has changed. But that is an argument different to mine: we will no longer be making an argument for why institution A should in this case do a job that usually belongs to institution B, but instead that we have decided that this job now generally belongs to institution A. Perhaps I am naïve, but I worry that the more we talk about parts of the system being generally defunct and fragile, and the more we accept the wholesale rewriting of constitutional rules on that basis, the easier all sorts of constitutional rewriting becomes. Maybe this is why Justicia is often blind – as a symbol of faith in law even in a world that, if we look around, can seem to give us so many reasons not to do so.