Arguments from Failure, Judicial Intervention and Democracy
March 16, 2026
[Editor’s note: this is the first 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)].
Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, by Michaela Hailbronner, is a very important work that updates and refines one of the most interesting discussions in contemporary constitutional theory. I am referring to the discussion on the role of institutions, and particularly the judicial branch, in times of constitutional erosion and democratic malfunctions (Dixon & Hailbronner 2021; Ginsburg & Huq 2018). The perspective adopted by the book is particularly interesting. This is so, on the one hand, because of the paradigm within which the work is framed -what Stephen Gardbaum has called “comparative political process theory” (CPPT) or Rosalind Dixon, similarly, named “Comparative representation-reinforcing theory” (CRRT) (see Ely 1980; Gardbaum 2020, 2020b; Dixon 2023; Gargarella 2020). On the other hand, and more specifically, the book’s approach is appealing, as it focuses on the analysis of “institutional failures” (which include, for instance, “state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits”, p.3).
Within the tradition in which it is inscribed, Michaela’s book deserves a prominent place, first, for its clarity and depth. More significantly, her work stands out for being genuinely comparative: it is a book written by someone who looks at comparative law with curiosity and open questions, and not simply to reaffirm her own conclusions. Another important virtue of the book relates to the author’s “contextual” concerns, that is, her interest in thinking about legal problems, and their eventual answers or solutions, in relation to the particular place and time in which they emerge. Her contextual view, in addition, extends not only to the institutions of a (local) democracy as a whole, but also to the international sphere. And these merits are added to her valuable concern for appropriately calibrating (judicial) responses to the “failure of others”, for which she offers relevant metrics.
There would be much more to say about the merits and controversies raised by the book, but here, and given the limits of space, I will content myself with adding just a couple of observations. The first observation has to do with the place that his study reserves for judges. In that respect, I would say that, in general, but particularly in times of democratic erosion, one should not assume that the kinds of troubles in question (i.e., the capture of institutions by particular interests) affect all government institutions, but not, in principle, the judiciary. More specifically -one could claim- in an “eroded democracy,” the judiciary tends to become part of the problem that the theory needs to address. This is because, as history confirms, in contexts of “erosion,” political power is motivated to do everything possible to limit or colonize the actions of the courts. In sum, our starting point needs to be a judiciary that is probably affected, rather than free, from the institutional difficulties under examination.[1]
The other point I wanted to mention has to do with the normative basis of Michaela’s analysis, and in particular with the conception of democracy that seems to be present throughout her book. As I have tried to demonstrate in other works, a significant part of contemporary legal doctrine tends to conflate the questions of constitutionalism and democracy (Gargarella 2019, Gargarella 2022). As I see it, we currently face serious difficulties in both areas. On the one hand, we have problems of so-called “democratic erosion” although they actually refer to constitutional matters (concentration of power; abuses of authority; undermining of the power of oversight institutions). On the other hand, we have problems that are strictly democratic, linked (let’s say, for the moment) to a radical crisis in the representative system and, more generally, to the deterioration of the basic mechanisms of popular sovereignty (which include the reduction of democratic citizen participation to periodic voting). Both problems, which seriously undermine democratic constitutionalism, are very important, but the latter cannot be underestimated, much less ignored. And my impression is that Michaela’s book fundamentally neglects the democratic problem. Therefore, even if one day—miraculously—we could counteract present failures and restore the functioning of our institutions, on that day, our democratic problems would remain identical to those we suffer today. In short, I believe that her book should be reinforced, perhaps in the future, with a more detailed and in-depth analysis of democratic issues, which are as serious as, if not more serious than, the constitutional difficulties she analyzes in her current, excellent book.
Dixon, R. (2023), Responsive Judicial Review: Democracy and Dysfunction in the Modern Age, Oxford: Oxford University Press.
Dixon, R. (2025), “Arguments from failure,” Jotwell, Oct. 20th, https://intl.jotwell.com/arguments-from-failure-a-new-theory-of-judicial-review-and-restraint/
Dixon, R & Hailbronner, M. (2021), “Ely in the world: The global legacy of Democracy and Distrust forty years on,” I.CON, vol. 19, n. 2, 427-438.
Dixon, R and Landau, D. (2021), Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy, Oxford: Oxford University Press.
Ely, J. (1980), Democracy and Distrust, Harvard University Press.
Gardbaum, S. (2020), “Comparative Political Process Theory,” 18 I.CON 1429.
Gardbaum, S. (2020b), “Comparative Political Process Theory. A Rejoinder” 18 I.CON 1503.
Gargarella, R. (2022), The Law as a Conversation Among Equals, Cambridge: Cambridge University Press.
Gargarella, R. (2020), “From “Democracy and Distrust” to a Contextually Situated Dialogic Theory” I.CON, Volume 18, Issue 4, December 2020, 1466.
Gargarella, R. (2019), “Review of Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy, University of Chicago Press, 2018” Revista Derecho del Estado (Universidad Externado, Colombia), n. 44, 397.
Gargarella, R. (2013), Latin American Constitutionalism, Oxford: Oxford University Press.
Ginsburg, T.; Huq, A. (2018), How to save a Constitutional Democracy, Chicago: The University of Chicago Press.
Hailbronner, M. (2025), Acting When Others Aren’t. Arguments from Failure in Comparative Public and International Law, Cambridge: Cambridge University Press.
[1] Rosalind Dixon raises a parallel concern, and aptly asks Michaela if judges “have the capacity to accurately assess the necessity of their own intervention…or are they prone to overestimating their own institutional significance, or efficacy, and hence their duty to intervene to correct other institutions’ failures” (Dixon 2025). My concern, however, goes beyond that observation, to also impact Rosalind’s own analysis. See Dixon 2023; Gargarella 2025).