The Diverging Interpretations Around the Legal Notion of Hate Speech: a Valuable Contribution By Natalie Alkiviadou Looking Into The Case Law Of The European Court Of Human Rights
[Editor’s note: this is a review of Dr. Natalie Alkiviadou’s new book, Hate Speech and the European Court of Human Rights (Routledge 2025)].
The notion of hate speech has always been a problematic legal artifact in international human rights law. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides a balanced approach by framing the scope and main pillars of the right to freedom of expression while at the same time establishing clear criteria regarding the possibilities for States to introduce limitations or restrictions. Article 20 addresses the issue of limits with a different tone and technique. It basically introduces straightforward prohibitions in relation to two big categories: propaganda for war and advocacy of hatred that constitutes incitement to discrimination, hostility or violence (usually known as illegal hate speech).
Despite their differences, articles 19 and 20 are obviously interrelated. Even indirectly, the main spirit of the three-part test enshrined in the former clearly permeates (or should permeate) the interpretation and application of the latter. Therefore, the need for clear legal definitions of hate speech, the protection of the dignity of vulnerable groups and characteristics as a legitimate purpose, and the demand for a graduated approach when it comes to legal instruments and penalties are fundamental principles to be considered by legislators and those enforcing the law. They have also inspired additional standards, such as the well-known Rabat Plan of Action, aimed at avoiding the misuse of this category to curb merely uncomfortable speech.
This being said, and as it is well explained in Alkiviadou’s book, the international instruments that provide specific approaches to the notion of hate speech are not necessarily uniform as to the thresholds that would trigger the respective legal prohibitions. The book highlights the high threshold incorporated into the universal human rights system based on the ICCPR and the Rabat Plan of Action, the more moderate threshold provided by the European Union via the Framework Decision, and the more complex and often inconsistent approach of the case law of the European Court of Human Rights (ECtHR) based on the provisions contained in the European Convention as a “living instrument”. The study also points to the reality of hate speech definitions and restrictions as established under online platforms’ corporate policies for purposes of commercial safety and specific business models. In these last cases, the threshold tends to be quite expansive and allows for the restriction and elimination of vaguely defined categories of “hateful” speech such as slurs or dehumanization.
The book dedicates its central and most extensive part to the trajectory of the jurisprudence of the ECtHR in this area, and by extension, to the protections granted and the limits that can be legitimately imposed on freedom of expression in cases of offensive, hateful and extremist speech. Based on an exhaustive analysis of the most significant judgments in this area, Alkiviadou’s dissection of the evolution of the jurisprudence represents a critical analysis of the way the European human rights system validates certain limitations to freedom of expression and pluralism as pillars of a democratic society. Taking as a point of departure the foundational formulation by the Court in Handyside v the United Kingdom of the right to “shock, disturb and offend”, the author provides us with significant evidence of the jurisprudential abandonment of the rigorous scrutiny required to justify state interference with expression.
Among the specific flaws detected and categorized by the author in the mentioned areas I should particularly underscore the absence of a substantive, unified definition of hate speech across the jurisprudence, leading to arbitrary and unpredictable adjudication; the regression, in some cases toward a “low-threshold” paradigm where mere insult, ridicule, prejudice, or political attacks against certain groups justifies criminal sanctions; the related failure to require objective evidence of “actual harm,” relying instead on normative assertions and vague fears of social instability, the inconsistent application of the “abuse of rights” clause under article 17 of the Convention and its relation with the limitations enshrined in article 10; as well as the favorable consideration of “hate speech by proxy” determinations by national courts which shift liability from speakers to intermediaries in ways that might be inconsistent with international and national regulatory models and best practices in this area.
This book thus shows that, when it comes to hate speech, the ECtHR may have been tempted by the idea of supporting “militant democracy” approaches, where the requirement of imminence or proven risk of harm is replaced with the perception of a mere prospect of societal intolerance.
In sum, Natalie Alkiviadou has produced a unique and solid scrutiny of the case law of the ECtHR in cases of hate speech. The book does not only show the analytical shortcomings and inconsistencies of judgements in this area, but it also invites to adopt a more stringent approach based on a resolute defense of the right to express shocking, disturbing and offensive ideas, and where possible restrictions (either based on article 10 or article 17 of the Convention) are subject to a strict scrutiny for harm following clear scientific evidence or sociological data. All these principles will not only provide proper protection to freedom of expression in the continent in times of serious demise but will also preserve the obvious legitimacy of the Court as a human rights arbiter in the international arena.
“The Failures of Others”: Michaela Hailbronner’s Reply to Pou Giménez, Roberto Gargarella and David Landau.
[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 shouldindeed 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.
Responding to Institutional Failure Where Failure is Pervasive: A Response to Michaela Hailbronner’s The Failure of Others.
[Editor’s note: this is the third 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 The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law is a brilliant and important book, one which will inform debates about constitutional theory and judicial role for a long time to come. Hailbronner’s ambitious book gives the first comprehensive theory of responses to institutional failure by courts and other constitutional actors. The book’s breadth is impressive, as Hailbronner draws on rich examples from a wide range of domestic and international jurisdictions, from the US to Colombia, the United Nations to the European Union.
Likewise, Hailbronner’s nuanced normative theory of responses to failure is a major contribution to recent debates. The book rightly points out the underappreciated dangers of arguments from the premise that other institutions have failed in their duties, which can justify overreaches or even authoritarianism. And thus her argument, while defending the legitimacy (and a bit more skeptically, the efficacy) of interventions to ameliorate institutional failure, also insists on guardrails that are both realistic and important. She rightfully insists that failure arguments be distinguished from emergency arguments, suggests that institutions consider the existence of more democratic alternatives, and requires that responses be proportional in nature. As a theory of separation of powers, it adds an important angle to recent work calling for flexibility, collaboration, and responsiveness, as in Rosalind Dixon’s Responsive Judicial Review and Aileen Kavanaugh’s The Collaborative Constitution.
Institutional Failure as Commonplace
Hailbronner suggests that interventionist arguments from the failure of other institutions should be “safe, legal, and rare.” I am less certain about the “rare” part, either descriptively or normatively. Many of Hailbronner’s core domestic examples come from “global south” jurisdictions such as India, South Africa, and Colombia, which have often been innovators in conceptions of judicial role. In these jurisdictions, judicial and scholarly discourse suggests that widespread institutional failures of legislatures and bureaucracies are commonplace, not unusual. Dysfunctions in public health, social security, public safety, infrastructure, lawmaking, and many other realms. The U.S., long considered an archetypical “consolidated” democracy, right now demonstrates a veritable laundry list of dysfunctional institutional performance stemming from both constitutional and statutory factors. In the 1960s and 1970s when structural interventions in the U.S. were widespread, judges found numerous institutional failing in places like prisons, schools, hospitals, housing projects, etc. Those interventions trailed off over time not necessarily because the problems went away, but because of judicial ideology that made judges less willing to engage in them. As Hailbronner recognizes, institutional failures come in many shapes and sizes. But I would suggest reconceptualizing them in at least many systems as relatively routine problems within constitutional governance, rather than as exceptional events. This thrust is consistent with recent work by Gardbaum, Cepeda and myself, and others in a revised, more expansive comparative “political process theory.”
The implications of seeing institutional failure as often commonplace, not rare, are significant, albeit complex. Hailbronner focuses largely on the risk that courts and other institutions will abuse arguments from institutional failure to overreach; in many contexts, I would instead emphasize the risk – at least vis-à-vis courts – that narrow conceptions of judicial role and the separation of powers will result in too little willingness to engage with structural institutional problems. More broadly, there is a major risk that institutional failures will go unaddressed.
Targeting Judicial Review
One point is that at least judicial involvement in systemic institutional failure becomes in part a question of selection or targeting. Judicial review – at least of the structural variety – is a scarce resource. Hailbronner notes the “unconstitutional state of affairs” doctrine in Colombia, and the Constitutional Court’s efforts to confine more large-scale interventions to problems of significant size and a structural character. I would also emphasize the judicial imperative to consider the likilihood of success, which depends on finding political and non-political allies. As Hailbronner notes, successful cases of intervention often seem to work because significant aspects of the ruling coalition actually support what the court is trying to do and view judicial review as a useful tool to achieve their goals. The degree and organization of civil society support also seems important from comparative experience. The hard truth of these lessons is that sometimes, robust judicial intervention will be unwise despite a massive structural failure, simple because the prospects of having a significant effect are so low.
The Many Judicial Responses to Failure
Another point is about means. Hailbronner’s account of domestic judicial review focuses on large-scale structural remedies from the US, India, and South Africa that as she notes, have a promising but highly imperfect track record. Rodriguez-Garavito suggests that one key for efficacy is not merely the scope of the orders, but the robustness of the court’s monitoring mechanisms; even then, progress is usually slow and uneven. In comparative terms, these kinds of structural remedies are not particularly common. Because of political constraints, resource constraints, and more traditionalist conceptions of judicial role, many judiciaries around the world are too reluctant to deploy them even where warranted.
But, consistent with a world in which institutional failure is common, judicial review seems to respond to institutional failures in many different ways, of which the structural injunction is only one striking example. Consider the ways in which procedural forms of review can serve a similar purpose. Courts sometimes modulate the strictness of their review of government policies to their perception of how well the underlying institution has functioned, either in the particular case at end or more generally. A recent example is the way the US federal government seems to have lost the “presumption of regularity” during the second Trump administration, at least among many lower federal courts. Policies and actions that might previously have withstood scrutiny due to deference are now receiving a harsher reception as judges suggest that the government as a whole is not working in a normal, good faith way.
I think, then, that despite a growing bank of comparative work, responses to failure have not gone much beyond the “experimental” stage, where the right response is highly contextual, and success is quite contingent. Fostering an experimental ethos in judges, particularly in systems where this ethos is rare, may be the most important thing to do. As an example, the Colombian Constitutional Court in recent years been more reluctant to deploy the wide-ranging and durable monitoring devices used in its landmark internally displaced persons (2004) and right to health (2008) cases. But it has sometimes tinkered with other approaches that may impose lower costs on the Court, for example the use of South-African style engagement remedies or the outsourcing of most monitoring to an independent commission staffed with political, legal, and civil society personnel.
The Goals of Intervention
A final point is one asked but left somewhat open by Hailbronner’s analysis: what is the purpose of intervening in cases of institutional failure? One can distinguish between two ideal types of intervention: efforts to replace non-functioning institutions versus efforts to improve them. The lines between replacement and improvement are blurry, of course, and courts sometimes do both at the same time. Both strike me as having some legitimacy from a theoretical perspective. The argument for (at least temporary) replacement stems both from the primacy of realizing constitutional goals and the fact of redundancy as part of modern separation of powers, where legislatures, courts, bureaucracies, and fourth-branch democratic accounability institutions share overlapping functikons. The legitimacy of improvement-type interventions is probably easier to construct, based on Ely-like political process concerns and a longer-run effort to create a well-functioning constitutional system.
To what degree is either goal feasible? Courts can create workarounds for non-functioning bureaucracies, for example by allowing claimants to obtain benefits from badly-functioning healthcare systems via litigation. These workarounds, however, may come with their own pathologies, especially if benefits are only available to those willing and able to sue. As well, the existence of a judicially-created safety valve might actually reduce political pressure for bureaucratic reform by giving the relatively affluent and powerful relief.
Improvement, perhaps the more appealing goal in most cases, comes with its own difficulties. We know from experience that courts can have some impact on improving bureaucratic performance over time, at least under certain conditions. I would suggest that even this kind of slow-bore headway is very often worth it and may reflect some of the highest-impact forms of judicial review. The ability of courts to improve legislative functioning is even more difficult, but not impossible. One indirect impact of the IDP and health interventions in Colombia was to make the rights of victims and the right to health a much more visible part of public discourse, and the end result was the passage of reasonably effective, landmark laws in both areas; a similar dynamic seems to have happened with the right to food in India. It is implicitly tempting to compare these flawed interventions to an ideal world, but the more relevant comparison to a world without them, a counterfactual that almost certainly would have left things much worse off.
In short, Hailbronner’s The Failures of Others sheds much light on crucial questions, one which is deepened by reflecting on the frequency of the phenomenon she identifies.
[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.
Arguments from Failure, Judicial Intervention and Democracy
[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 & 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).
Patriarchy, Women’s Rights, and the Future of Liberal Democracy: A Response to My Interlocutors
[[Editor’s note: this is the final post in the symposium on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
I am immensely grateful to profs. Upham, Rimalt, Prieto-Rudolphy, Palazzo, and Mancini for their careful and thorough reading of my book and for their discerning and generous commentaries. I am also deeply grateful to the ASCL Blog for offering to host this symposium. For lack of space, I will not be able to discuss all the insightful remarks of my interlocutors except to thank them for their solid support for my thesis and for their detailed and illuminating perspectives. I will use the limited space I have to reply to one central critique raised by each of my interlocutors, after first laying out the relevant context of the book.
The book examines both conceptually and diachronically how patriarchy and patriarchal religion affect the rights of women and how they have been reflected in the liberal legal order in Western liberal states, with an emphasis on the USA. The argument is situated in the context of the recent democratic erosion occurring in many liberal democracies. I claim that weaknesses in liberal theory and practice, particularly the primacy of the public/private distinction, have facilitated the strengthening and re-politicization of patriarchal religion and the rise of right-wing populism, and that these jeopardize both the rights of women and the future of liberal democracies.
In the book, I point out that patriarchy is more than sexism; patriarchy is a fully-fledged political order, which was identified by Max Weber as the earliest and most basic form of political organization.[1] Filmer, in his work Patriarcha, defended the political right of kings to rule over their subjects based on the divinely ordained right of the father to rule over his sons.[2] While liberalism rejected the political aspects of Filmer’s patriarchal theory and adopted the social contract theory which views all men as entitled to political freedom and equality in the public sphere, it simultaneously maintained the patriarchal subjugation of women to men as natural and as belonging to the private non-political sphere.
I show in the book that the liberal assumption that it is possible to confine patriarchy, and the discrimination it involves, to the private sphere of religion and the family, is wrong. As a result, women’s rights have never been fully protected in liberal states, and more recently, patriarchal religious, nationalist, and populist ideologies that have flourished and gained power in the private sphere, have been taking over the public sphere and threatening the liberal democratic framework in many countries. In the book’s conclusion, I argue that extricating liberal democracy from its patriarchal roots entails replacing political liberalism with a substantive egalitarian liberalism that focuses heavily on the private as well as public sphere and requires the state to take active steps to remove all types of gendered power differentials that are supported and maintained by patriarchal liberalism in both spheres.
With this context in mind, I will now turn to respond to my interlocutors’ central comments.
Prof. Upham asks, “What about the men?”, referring to the damage patriarchy causes to men. He gives the example of Japanese men, whose rigid and endless work demands result in their complete absence from their children’s and family lives. I agree with Upham that patriarchy’s strict gender roles harm both women and men. If implemented, the obligation in The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on states to take all appropriate measures to modify existing legislation, customs, practices, and social and cultural patterns of conduct that discriminate against women or that are based on the idea of the inferiority or superiority of one of the sexes, will correct patriarchy’s harm to women and men alike.[3] Many liberal democracies have made significant progress towards more egalitarian roles for both sexes in the labor market and at home. Unfortunately, as I discuss in the book, the embeddedness of patriarchy in liberal societies has enabled right-wing populists to enlist considerable support from men by committing to reverse this progress.[4] Gidron and Hall explain that white working-class male support for right-wing populism in liberal democracies stems from the relative decline in their social status vis- à-vis women due to gender equality legislation and economic and cultural developments. The loss of status is perceived by white working-class males as a crisis in masculinity and is weaponized by populists against the existing liberal democratic social order, fueling anti-democratic sentiments.[5] Homolar and Lofflmann argue that alongside ethnicity and nationality, populist masculine rhetoric “forms the core of the radicalizing playbook that helps turning individual grievances over frustrated desires and unmet expectations into a call to arms for political agents who promise alleviation and transformative change.”[6] Populist rhetoric represents men as emasculated victims of progressive change who have the right to demand redistributive justice, including through anger, vengeance, and violence.
In her commentary, Prof. Rimalt objects to my description of the religious forces that have been increasing their political influence in many liberal democracies as religious conservatives. She maintains that describing them as religious fundamentalists better captures the nature of the forces that are currently driving democratic backsliding and the unique threats they pose to liberal rights and gender equality. I agree with Rimalt that many of the conservative forces driving the democratic backsliding in liberal democracies can be considered religious fundamentalists. Nevertheless, I argue in the book that these forces also include religious nationalists and right-wing populists who are not necessarily deeply religious people that want to deepen the practice of religion in their private lives. Rather, they are religious conservatives who are dedicated to the mission of infusing Christianity (or their respective religion), including its morality and its traditional views of gender and the family, into the public sphere and the governing institutions in their country.[7]
Moreover, following Stoeckl, I argue that Rawls’ political liberalism hinges on the implicit assumption that there are only two kinds of religious doctrines – a small minority of fundamentalist doctrines which are unreasonable and are therefore shunned and cannot cause much harm, and all remaining religious doctrines which he designates as reasonable and implicitly assumes that they are all willing to adopt a liberal political conception of justice which treats all citizens as free and equal.[8] Stoeckl argues that the empirical study of religious actors reveals that there is a third group of religious actors which she calls “traditionalists”. Traditionalists are not fundamentalists, and therefore they are not shunned either by political liberalism or by society. However, at the same time, traditionalists are unwilling to adopt a liberal political conception of justice which treats all citizens as free and equal. Rather, they strategically use their extensive political power, both internally within states and internationally, to implement their illiberal ideology and change the consensus over the appropriate conception of justice in society.[9] In the book, I argue that it is the combined force of these extensive and ever growing religious, nationalist, and populist groups with overlapping agendas that leads the religious conservative attack on women’s rights and on liberal democracy.
As mentioned in several of the commentaries and in my response, the book engages and critiques Rawls’ political liberalism.[10] In her commentary, Prof. Prieto-Rudolphy wonders “to what extent we can blame Rawlsian liberalism, a highly idealized theory, for the flourishing of gendered beliefs in the private sphere when no society has ever perfectly embodied Rawlsian ideals.” My response, which I discuss extensively in the book, is that we can, and should, blame liberalism – with its emphasis on the public/private distinction and on shielding patriarchal religious doctrines from criticism – for the flourishing of gendered beliefs, and that Rawls’ political liberalism is no exception. In his book Political Liberalism, Rawls argues that political, rather than comprehensive, liberalism is the appropriate political theory for modern heterogeneous democratic societies in which a pluralism of incompatible yet reasonable comprehensive religious, philosophical, and moral doctrines exists.[11] Putting aside the question whether Rawls envisioned his political liberalism as ideal theory or as a blueprint for liberal societies, his theory fails even on its own terms. For example, as mentioned above, Rawls contends that “except for certain kinds of fundamentalism, all the main historical religions … may be seen as reasonable comprehensive doctrines.”[12] This means, as Okin points out, that Rawls considers religions that both preach and practice highly sexist modes of life as reasonable.[13]
Furthermore, as the discussion in the book shows, far from being perceived as ideal theory, variants of the political liberal constitutional framework suggested by Rawls can be found in most Western liberal democracies, and so can their precarious consequences. Rawls’ misguided assumption that citizens who adhere to non-liberal and illiberal comprehensive doctrines will simultaneously develop a genuine commitment to a liberal political conception of justice, on which he bases his entire theory, has been proven wrong by the success of right-wing populism in the new millennium. This success, which is based on the strength of pre-existing non-liberal and illiberal groups that rally behind right-wing populism, has exposed the frailness of the extant liberal political framework and the implausibility of its theoretical foundations.
While in her commentary, Prof. Palazzo is highly appreciative of the book’s analysis, she nevertheless worries that it “insufficiently reveals that law itself is not a neutral source of truth, but a contested space that can be mobilized by opposing political projects”. I fully agree with Palazzo that law is not a neutral source of truth, and I consider my book to be a feminist critical legal studies (FCLS) work, which exposes this fallacy. The book shows that far from being neutral, law in liberal democracies is inherently patriarchal, and legal concepts that are portrayed as neutral, such as the public-private distinction, carry very different consequences for women and men.
In response to my claim in the book that right-wing populism misappropriates human rights concepts and uses them against disempowered minorities such as women and other sexual minorities, Palazzo posits that if law is not neutral, then “debates about the “misappropriation” of human rights by right-wing populists appear less as conceptual distortions than as ordinary struggles over meaning within law.” I disagree. Recognizing that law is not neutral and that it is constantly being mobilized by opposing political projects does not mean that feminist legal theorists must relinquish the claim that some political projects distort the concept of “human rights” and its appropriate understanding in a liberal democracy. Quite to the contrary, recognizing that law is a political instrument that can, and often is, misused by the powerful against the powerless makes the struggle over the appropriate meaning of legal concepts such as human rights even more urgent.
Finally, Prof. Mancini argues in her commentary that while my analysis is largely persuasive, a comparative perspective reveals important regional variation. She points to the jurisprudence of the European Court of Human Rights (ECtHR) as reflecting a more nuanced approach when balancing between demands for religiously motivated exemptions and sexual and reproductive rights. I agree with Mancini that the ECtHR remains more protective of the rights of women and sexual minorities than the American Supreme Court. This is in large part because the ECtHR has not yet been captured by right-wing populist forces, while, as I discuss in the book, the capture of the American Supreme Court was completed by the end of President Trump’s first term, with the unprecedented appointment of Supreme Court Justice Amy Coney-Barret, eight days before the 2020 presidential elections. In Reva Siegel’s words: “The Republican Party engaged in norm-busting appointments politics to produce the Supreme Court that decided the Dobbs case.”[14]
The comparison between the ECtHR and the American Supreme Court demonstrates the danger that I discuss in the book of the reinstitution of religious patriarchy as a political rule. With its jurisprudence giving countries a wide margin of appreciation in sensitive issues such as reproductive rights, the ECtHR has succeeded in maintaining a patriarchal liberal status quo. Nevertheless, despite the Court’s relatively progressive rulings, this status quo has, among other things, led it to refuse to recognize women’s right to abortion.[15] This strategy may end up backfiring as more countries in the EU are taken over by right-wing populists that dismantle the liberal democratic constitutional framework in their countries and establish patrimonial states where religious patriarchal rules apply in both the public and private spheres. The shift in the balance of power in the EU towards these states may enable them to capture the ECtHR and reverse the gains in women’s and sexual minorities’ rights, much like what has happened in the USA.[16]
I want to thank Profs. Upham, Rimalt, Prieto-Rudolphy, Palazzo, and Mancini again for their illuminating commentaries and conclude by reiterating the crux of my argument in the book. The rise of right-wing populism and politicized conservative religion, and their joint attack on the liberal state, have shown that what stands at the core of the current struggle is not only the excessive power of patriarchy in the private sphere but a concerted attempt by different patriarchal ideologies to carry out a patriarchal overhaul of the public sphere and state structure towards the establishment of a patrimonial state. s I argue in the book, feminism has been right all along. The personal is indeed at the very heart of the political, and patriarchy is a threat in both spheres, not just for women, but for the future of liberal democracy. Liberal democracies that continue to ignore this reality do so at their own peril.
[1] Julia Adams, The Rule of the Father, Patriarchy and Patrimonialism in Early Modern Europe, in Max Weber’s Economy and Society: A Critical Companion 237, 238-239 (Charles Camic, Philip S. Gorski, and David M. Trubek eds.)
[2] Robert Filmer, “Patriarcha” and Other Writings 1–68 (Cambridge University Press 1991)
[3] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S 13. See discussion of the convention in ch. 2. sec. 5 of the book.
[5] Noam Gidron and Peter A. Hall, The politics of social status: economic and cultural roots of the populist right, 68(1) The British Journal of Sociology s57 (2017)
[6] Alexandra Homolar and Georg Löfflmann, Weaponizing Masculinity: Populism and Gendered Stories of Victimhood, 16(2) Journal for the Study of Radicalism, 131, 132 (2022)
[7] Andrew L. Whitehead & Samuel L. Perry, Taking America Back for God: Christian Nationalism in the United States 149-150, 152 (Oxford University Press, 2020)
[8] Kristina Stoeckl, ‘Political Liberalism and Religious Claims: Four Blind Spots’ 43(1) Philosophy and Social Criticism 34, at 35-38 (2017)
[9]See my discussion of Christian nationalists in the USA and Religious Zionists in Israel as traditionalists in ch. 5
[10]See especially ch. 2 sec. 2 & 3, ch. 6 sec. 2, and Conclusion
[11] John Rawls, Political Liberalism, xviii (Columbia Univ. Press 1993).
[13] Susan Moller Okin, Justice and Gender: An Unfinished Debate, 72 Fordham L. Rev. 1537, 1556 (2004).
[14] Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism – and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1176 (2023). See my discussion in ch. 6.
[15] Most recently repeated in ECtHR 13 November 2025, Application no. 6030/21, A.R. v. Poland, sec. 104
[16] For a similar concern see Ruth Rubio-Marin, Anti Gender Constitutionalism, 21 European Const. L. Rev., 37, 53-53 (2025)
The Cost of Conscience: Religious Exemptions and the Erosion of Women’s Rights
[Editor’s note: this is the fifth of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
In Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights, Gila Stopler offers a powerful feminist critique of liberal democracy by exposing how women’s rights are structurally undermined through the liberal state’s accommodation of majority religions. Her central claim is that religion functions as a deeply patriarchal institution whose authority is preserved—and constitutionally legitimized—by liberalism’s commitments to toleration, religious freedom, and the public–private divide. Rather than operating as a neutral framework, liberal constitutionalism enables the erosion of women’s rights from within the legal order by insulating religious practices from democratic scrutiny.
Stopler challenges the conventional Enlightenment narrative that portrays secularism as an emancipatory force that confined religion to the private sphere and thereby facilitated women’s liberation from religious authority. Drawing on feminist critiques of the social contract[1], she demonstrates that the designation of certain domains as “private” does not signify a withdrawal of power, but rather a mode of its reconfiguration and concealment. Within this framework, religion occupies a uniquely privileged position. Its ostensible privatization shields religious norms from democratic contestation while simultaneously allowing them to regulate gender relations, family structures, sexuality, and reproduction. Far from being politically neutral, the private sphere becomes a site in which patriarchal power is entrenched and normalized.
Crucially, moreover, Stopler shows that the liberal insistence on treating religion as private obscures the extent to which religious patriarchy extends well beyond the private sphere and profoundly shapes public life. One of the most significant mechanisms through which this occurs is the proliferation of religiously based exemptions from generally applicable laws. Across the United States, Europe, and Israel, claims for exemptions increasingly target women’s reproductive rights and the rights of sexual minorities—domains that, as Stopler observes, are central to the patriarchal sexual order and its linkage of sex, marriage, and gender hierarchy. In Israel, these dynamics are further intensified by conflicts over women’s presence in the public sphere itself, including practices of gender segregation and exclusion that restrict women’s freedom of movement and participation.
Stopler’s comparative analysis reveals striking similarities between constitutional systems that are often regarded as fundamentally different in their approach to religion–state relations. The United States, frequently idealized as a bastion of secularism, and Israel, which lacks a formal separation between law and religion, both exhibit a growing willingness to accommodate religious claims at the expense of women’s equality. This convergence underscores Stopler’s broader claim that the problem lies not in the absence of secularism, but in liberalism’s structural deference to religion as a protected sphere of authority.
Judicial decisions such as Burwell v. Hobby Lobby exemplify this tendency. In that case, the U.S. Supreme Court held that for-profit corporations controlled by religious owners could be exempted from providing contraceptive coverage mandated by law, on the ground that compliance would burden the owners’ religious freedom[2]. As Stopler argues, this reasoning is emblematic of a broader transformation in the concept of conscientious objection. Traditionally understood as a limited protective mechanism for marginal individuals holding exceptional beliefs—such as pacifists—conscientious objection has evolved into a collective, politically mobilized strategy aimed at undermining the general applicability of secular law. These claims increasingly amount to “jurisdictional objections” that challenge the state’s authority to regulate domains claimed by religion[3].
The cumulative effect of religious exemptions is the hollowing out of women’s rights without their formal repeal. Equality remains enshrined in constitutional texts, yet its realization becomes contingent and uneven, producing parallel legal regimes in which women disproportionately bear the costs of accommodation.
While Stopler’s analysis is largely persuasive, a comparative perspective reveals important regional variation. Europe, though not immune to the proliferation of conscientious objection claims, has demonstrated a relatively greater capacity to resist their corrosive effects. The jurisprudence of the European Court of Human Rights (ECtHR) reflects a nuanced approach that distinguishes between the protection of minority conscience and the accommodation of claims that undermine the rights of others. In Bayatyan v. Armenia, the Court robustly protected individual conscientious objection to military service under Article 9 of the EctHR[4]. By contrast, when religiously motivated exemptions have been invoked in the fields of sexual and reproductive rights, the Court has adopted a markedly more cautious stance, not privileging Christian majorities. In Ladele, the ECtHR upheld the dismissal of a registrar who refused to register same-sex unions on religious grounds, finding no violation of Article 9 and emphasizing the state’s duty to protect the rights of same-sex couples[5]. Similarly, in cases involving pharmacists who refused to dispense contraceptives, the Court held that freedom of religion does not entail an unconditional right to act in accordance with religious beliefs within the professional sphere[6]. The Court’s conclusion that the failure to provide for a right to conscientious objection does not constitute a violation of Article 9, if motivated by the protection of the right to health, further underscores its prioritization of women’s rights over claims of conscience[7].
Europe’s relative success in containing the assault of patriarchal religion on women’s rights can be attributed to the existence of common standards and the institutional role of the ECHR as a shared normative framework. Yet Stopler offers a sobering warning about the rise of illiberalism and populism and their strategic mobilization of religion. Across liberal democracies, religion is increasingly deployed within populist projects that frame gender equality as elitist, undemocratic, or culturally alien. Anti-gender discourse has emerged as a powerful unifying force—a “symbolic glue” that binds heterogeneous illiberal actors through a shared opposition to feminism, sexual minorities, and liberal human rights[8].
Within these discourses, gender becomes a proxy battleground for broader critiques of liberal democracy and globalization. Populist rhetoric relies on binary logics and moral panic, naturalizing gender hierarchy and sacralizing “the people” as a homogenous moral subject under threat from feminists and sexual minorities. In this context, rights themselves are appropriated and re-signified, stripped of their emancipatory content and redeployed to legitimate exclusion and inequality[9].
Ultimately, Stopler’s critique of the public–private divide exposes a foundational contradiction within liberalism. A state that claims neutrality toward religion cannot simultaneously guarantee women’s equality when religious institutions exercise entrenched patriarchal power. Her intervention calls for a feminist rethinking of toleration: without confronting religion as a patriarchal, public and political force, liberal democracies will continue to erode women’s rights in the name of religious freedom.
[1] C. Pateman, The Sexual Contract, Stanford University Press, 1988.
[2] Supreme Court of the United States, Burwell v. Hobby LobbyStores, Inc., 573 U.S. 682 (2014).
[3] S. Mancini, “Global Religion in a Post-Westphalia World”, in A. F. Lang, A. Wiener, Handbook on Global Constitutionalism, Edwar Elgar Publishing Limited, 2023: 556 – 567
[4] ECtHR 7 July 2011, Application no. 23549/03, Bayatyan v. Armenia.
[5] ECtHR 15 January 2013, Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v.
the United Kingdom.
[6] ECtHR admissibility decision 2 October 2001, Application no. 49853/99, Pichon and Sajous v. France.
[7] ECtHR 11 February 2020, Application no. 43726/17, Ellinor Grimmark v. Sweden; ECtHR 11 February 2020, Application no. 62309/17, Linda Steen v. Sweden.
[8] W. Grzebalska, E. Kováts, A. Pető, Gender as Symbolic Glue: How ‘Gender’ Became an Umbrella Term for the Rejection of the (Neo)Liberal Order, in Breaking Feminism. LUX, 2018: 32-38.
[9] S. Mancini, M. Rosenfeld, Politicized Religion and the Reframing of Fundamental Rights, Oxford University Press, 2026.
The Politics of the Sacred: Women’s Rights at the Limits of Political Liberalism
[Editor’s note: this is the fourth of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
Gila Stopler’s Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights offers a powerful analysis of the relationship between patriarchy, religion, and political liberalism, and of the enduring harm this relationship has caused to women. The book shows how liberal states have failed women not despite, but often because of, the legal doctrines and normative assumptions that are meant to protect religious freedom.
At the heart of Stopler’s analysis lies a sustained critique of the public–private distinction. Liberal theory has long treated the private sphere as non-political, natural, and pre-social. This assumption, Stopler convincingly argues, has allowed illiberal doctrines to develop beyond the reach of constitutional scrutiny. Patriarchal subordination was normalized and shielded precisely because it took place in spaces labeled “private” and therefore insulated from political intervention.
Stopler’s central insight is that this separation has now reached a point of collapse. Illiberal doctrines that were cultivated in the private sphere have moved back into the public arena, supported by the growing influence of strong religions over lawmaking, education, welfare provision, and social services. The rise of right-wing populism marks the definitive erosion of the public–private divide and poses a direct challenge not only to women’s rights but also to liberal democracy itself. In this sense, the book is not only about gender equality; it is also a diagnosis of liberalism’s structural weakness. Stopler’s attention to the fragility of liberal democracy—its limited capacity to resist illiberalism even under well-designed constitutional frameworks—is particularly welcome, as it confronts a major obstacle to the reception of her proposal: the fact that positions of power remain overwhelmingly male-dominated, reflecting centuries of entrenched patriarchy.
The book is meticulously researched, theoretically grounded, and intellectually honest. It traces the history of the public–private distinction through historical, legal, and political thought, including the work of liberal theorists such as Rawls, whose defense of state neutrality toward competing conceptions of the good helped reinforce the idea that religious doctrine lies beyond the reach of public reason.
One of the book’s most valuable analytical contributions is its taxonomy of state approaches to religion, which distinguishes between privatization, authorization, and nationalization. Stopler’s proposal of “soft nationalization” of religion—where the state intervenes to protect vulnerable parties without imposing religious doctrine—is both careful and persuasive. Religion is not treated as a monolith: Stopler differentiates between “strong” or conservative forms of religion and more plural, progressive practices, leaving room for internal critique and reform. This approach aligns with post-structuralist accounts of religion as dynamic and internally diverse, while avoiding the tendency to demonize religion as such.
At a deeper level, the book shows how a strong intuition—one grounded in lived, bodily, and relational experience—can be translated into a rigorous legal analysis and a concrete normative proposal. Stopler’s legal training provides the backbone to articulate this intuition within law’s language and institutional limits. At the same time, the analysis insufficiently reveals that law itself is not a neutral source of truth, but a contested space that can be mobilized by opposing political projects. Seen in this light, debates about the “misappropriation” of human rights by right-wing populists appear less as conceptual distortions than as ordinary struggles over meaning within law. What matters, ultimately, is not which faction temporarily succeeds, but the direction in which legal reform is steered. Stopler’s own direction is guided by an intuition rooted in bodily knowledge, historical awareness, and women’s lived experience. The book’s greatest merit lies in its recognition, supported by extensive legal and historical evidence, that women have suffered profound harm from conservative religion, and above all from their exclusion from the sacred.
The book’s introduction identifies what I would describe as the original sin of Western patriarchy: spirituality got lost in translation into institutionalized religion. A certain religious discourse has repeatedly been used to project trauma and justify violence, as illustrated by contemporary judicial invocations of divine wrath to deny women access to abortion (see the Chief Justice of the Alabama Supreme Court’s reference to the “wrath of a holy God” in Burdick v. Aysenne). Stopler’s account of the emergence of a singular male god and the displacement of earlier mother-goddess traditions exposes the deep symbolic foundations of women’s exclusion. It is increasingly clear that Western religions reflect a distorted form of spirituality, particularly evident in the systematic marginalization of the feminine.
What is ultimately at stake is women’s exclusion from meaning-making itself. Religion and culture are saturated with norms that regulate not only behavior but also emotions and desires (p. 24). By excluding women from the sacred, patriarchal religion removed them from the processes through which truth, value, and moral obligation are defined. This explains why intervention in the so-called private sphere is indispensable, and why attention must be paid to religious language, imagery, everyday practices, and the formation of meaning and feeling (p. 27), since these become self-limiting norms that foster control without our realizing we are being controlled.
From the abolition of pagan priesthoods under Theodosius in 391–392 CE, to Pauline and Augustinian prohibitions on women speaking in assemblies, to the persecution of women as witches, Christianity in the West systematically severed women’s access to the sacred. As recent scholarship has shown, including Ilenia Ruggio’s work on constitutional identity and women’s exclusion from the priesthood, this legacy has never been fully overcome and continues to shape contemporary constitutional orders.
Why does this matter today? Don’t we have more pressing problems, one could argue? Because doctrines grounded in the denial of bodily truth—especially the denial of women’s role in creating life, which is framed as a punishment for tempting Adam to sin—have severed women from one of the most important dimensions: that of the sacred. Today, the distancing from bodily experience that characterizes patriarchal religion interacts with other forms of alienation, disembodiment, and social fragmentation, a process intensified by technological developments that weaken embodied and relational knowledge. Together, these dynamics contribute to a “shrinking” of humanity, driven by separation from nature, from other human beings, and—most critically—from the wisdom carried in our own bodies. Stopler’s book helps clarify how religious patriarchy has served as both a driver and a justification for this ongoing process of bodily truth replacement, a problem that is doomed to become increasingly acute.
Walking through the ancient library of the University of Coimbra, a space once reserved exclusively for men, I could not help feeling the accumulated weight of this exclusion. Stopler’s work gives conceptual clarity to that historical experience and traces its legal afterlives. She shows how contemporary abortion rulings, restrictions on women’s access to religious authority, and laws that openly subordinate women in the name of religion are not anomalies, but predictable outcomes of a misplaced commitment to a fictive and porous public–private divide.
The private is political. And, as Stopler’s book compellingly demonstrates, the most intimate core of the private—the sacred—is political as well.
Feminism, Liberalism, and Religion
[Editor’s note: this is the third of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
In Women’s Rights in Liberal States. Patriarchy, Liberalism, Religion and the Chimera of Rights, Gila Stopler discusses the global rise of religious and far right-wing movements, pointing out an unlikely (but not exclusive) culprit: liberalism, or the liberal state, which has let patriarchal beliefs flourish, unchallenged, in the private sphere.
Dean Stopler’s book is incredibly timely and will become mandatory reading for anyone interested in the complicated relationship between populism, the patriarchy, religious beliefs, and liberalism. The book also provides a thorough discussion of recent developments in Israel and the United States pertaining to women’s rights and the rise of far-right movements, while skillfully acknowledging the relevant differences between the two countries, both in their political systems and their approach to religion.
The private sphere has been of concern to feminists for a long time. It is within the intimate setting of the family where patriarchal social norms are first encountered, to be learned, internalized, and, eventually, reproduced. The same is largely true of religious beliefs: they are often learned and internalized within the private sphere. But many religions (and, thus, religious beliefs) are, as Stopler notes, “patriarchal,” that is, they are premised on a gendered worldview, whereby men are women are not equal or are formally equal but destined to fulfil different (gendered) roles. When these religious beliefs are left to flourish in the private sphere they eventually seep into the public sphere and start eroding women’s rights and, even, democracy.
These beliefs, Stopler contends, should be understood as unreasonable comprehensive doctrines under a Rawlsian framework. Like “war and disease,” they should be contained. As a result, Stopler is in favor of some degree of state intervention in patriarchal religions, at least at the level of religious organizations. However, she sets the limit at intimate relationships: while the state can intervene to prevent gender-based discrimination in private organizations, including religious ones, it cannot legitimately do so within intimate relationships.
Stopler’s is a thoughtful and thought-provoking argument. It connects important strands of feminist theory with Ralwsian liberalism, while challenging some key assumptions about the place and limits of religion within the latter. And it does so by connecting what could be an entirely theoretical discussion with a context-sensitive treatment of an important global trend: the rise of the far-right and the related erosion of gender-based rights in the United States and Israel.
Stopler’s book is, in that way, wonderfully ambitious—and it delivers. Of course, those more inclined towards the theoretical dimensions of Stopler’s argument will perhaps miss a more thorough treatment of Rawlsian neutrality and whether the latter is compatible with Stopler’s preferred solution, which requires state intervention in religious organizations. One might also wonder to what extent we can blame Rawlsian liberalism, a highly idealized theory, for the flourishing of gendered beliefs in the private sphere when no society has ever perfectly embodied Rawlsian ideals.
Those more inclined towards the comparative dimensions of Stopler’s argument might wonder to what extent different constitutional frameworks can accommodate Stopler’s preferred solution and what factors, in addition to the avowed neutrality of the liberal state, can contribute to explaining the current gender-backlash and its appeal. Indeed, young men tilt more and more conservative in several countries, further apart from women than they were before; social media is ripe with misogynistic content; and anti-trans legislation and sentiment is flourishing in many parts of the world. Furthermore, an intersectional analysis of this gender backlash would, perhaps, reveal its ethnic and racial dimensions, tightly linked to anti-immigration sentiments and the nostalgic desire for an ethno-state, both key to the far right’s ideology.
The fact that Stopler does not devote as much time to these issues should not be seen as a shortcoming in what is already a formidable book. On the contrary, Stopler’s work also succeeds in showing how important it is to pay attention to misogyny in the private sphere and how fragile gender equality in the liberal state is. It is up to future work in the area to start answering the questions that Stopler’s work raises but does not yet answer.
Women’s Rights, the Rise of Religious Fundamentalism and the Misappropriation of Feminism
[Editor’s note: this is the second of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
Gila Stopler wrote a thought-provoking book that exposes the deep embeddedness of patriarchy in liberalism, populism, and conservatism, as well as in religion and culture. The book aims to deepen our understanding of the weakness of women’s rights in Western liberal democracies and to uncover the underlying connections between this weakness and the success of religious nationalism and right-wing populism in these societies.
I agree with much of what Prof. Stopler argues. Indeed, to understand current regression in women’s rights in Western countries such as the United States or Israel, it is crucial to highlight the enduring power of patriarchy in liberal societies and how it is used by right-wing populists and religious conservatives to advance their own cause, to restrict the rights of women, and to endanger the future of liberal democracy itself. Hence, in this commentary I seek to supplement and strengthen Prof. Stolper’s central claims by adding three additional perspectives to the discussion on the relationship between religion, liberalism, and patriarchy.
My first comment is conceptual. Throughout the book, Prof. Stopler refers to the rise of religious conservatism, adopting a term widely used in current scholarship to describe the type of religious forces that have gained growing political influence in many liberal democracies and primarily the United States. I would suggest replacing the term religious conservatives with religious fundamentalists, as the latter better captures not only the nature of the forces that are currently driving democratic backsliding but also the unique threats they pose to liberal rights and gender equality.
Religious fundamentalism involves a strict, literal interpretation of sacred texts and a belief in their absolute, unalterable truth. It often leads to dogmatism and extreme intolerance toward opposing viewpoints, which are seen as threats to “the truth.” For fundamentalists, their religion is beyond any form of criticism and must therefore be imposed upon others. Conservatism, by contrast, while often socially traditional and cautious about rapid change, is a broader political and social philosophy. It values inherited traditions and institutions without necessarily requiring literal interpretations of religious doctrine or a total rejection of modernity. The key distinction is that fundamentalism represents a more extreme, dogmatic, and militant subset of religiosity – one that cannot be equated with conservatism as a whole.
Justice Alito and Justice Thomas of the U.S. Supreme Court, for example, are not religious conservatives – they are religious fundamentalists. This more precise classification better illuminates their judicial reasoning and explains the often extreme and violent implications of their decisions. Alito’s majority opinion in Dobbs[1] is not merely a rejection of precedent; it is also a text that disregards the devastating real-world consequences of abortion bans for women’s lives and denies that such consequences should matter to the courts, even when they cause immense suffering. Similarly, Justice Thomas’s opinion in Bruen[2] – the case striking down New York’s requirement that individuals show “proper cause” to carry a concealed handgun in public – reveals a similar indifference to the human cost, disregarding the decision’s consequences for escalating gun violence and mass shootings, as well as its impact on ordinary people’s fundamental right to life.
The proposed focus on ‘religious fundamentalism’ as a distinct form of ‘religious conservatism’ also illuminates the nature of the ultimate project that these religious forces seek to advance, bringing me to my second comment.
In her book, professor Stopler rightly emphasizes that at the heart of the struggle waged by religious forces in liberal democracies lies not only the preservation of patriarchal power in the private sphere but also the patriarchal restructuring of the public sphere and the creation of a patrimonial state. I wish to reinforce this insight by suggesting that the precise objective of religious fundamentalist forces is to elevate “religious liberty” to the status of a super-right – one whose protection is prioritized above and beyond other fundamental rights. Crucially, the goal is not to protect the religious liberty of all religious views, but rather to enable the establishment of a single, fundamentalist version of religion as the primary regulator of the public sphere. This underscores the true essence of the fundamentalist project, exemplified by U.S. Supreme Court Justices such as Thomas and Alito: it is a reactionary enterprise aimed at undermining the existing constitutional order and replacing it with a new one – an order in which the Anti-Establishment Clause becomes increasingly irrelevant, and fundamentalist interpretations of Christianity emerge as a dominant force in shaping public life.
A recent article by Adam Hamdan[3] illustrates how these trends manifest in the Court’s jurisprudence. The article offers a statistical analysis of the role of religion in Supreme Court decisions. Hamdan finds that under the Roberts Court, the Supreme Court has ruled in favor of religious groups, especially Christian groups, more frequently than its predecessors. The Roberts Court has also taken up a greater number of Free Exercise Clause cases and issued consequential rulings on religious liberty at a significantly higher rate than earlier courts. Notably, Hamdan reports that in two-thirds of cases involving Christian groups, those groups prevailed, underscoring how the Court’s rulings actively assist in, and align with, efforts to impose a Christian nationalist worldview on the American public, practically erasing the Anti- Establishment clause.
Finally, we cannot discuss the current regression in gender equality without critically acknowledging the misuse of the term feminism and its strategic adoption by ultra-conservative and populist forces. These actors are actively undermining the feminist agenda and the struggle for gender equality by reframing feminism as a patriarchal concept. Their primary tool in this effort is the promotion of what they present as a new strain of feminism: “conservative feminism”, positioned as a declared corrective to the alleged failures of liberal feminism.
A revealing example comes from a recent episode of Ross Douthat’s podcast Interesting Times. Douthat is a conservative Catholic commentator whose new show, sponsored by The New York Times, aims to explore the New Right and other contemporary political realignments. In this recent episode he hosted two women described as ‘theorists’ to discuss the following question: “Did liberal feminism ruin the workplace, and is there a conservative feminism that can correct its mistakes?”[4] His first guest, Helen Andrews, recently published an essay titled “The Great Feminization,” in which she argues that women’s large-scale entry into the workforce has “feminized” numerous professions. According to Andrews, this shift endangers the labor market because women’s supposed prioritization of “empathy over rationality, safety over risk, and cohesion over competition” ultimately weakens institutions and professional standards. The second guest, Leah Libresco Sargeant, has recently published a book titled The Dignity of Dependence: A Feminist Manifesto. Under the guise of a new strain of feminism and as part of the slogan “advocating for women as women”, she calls for celebrating women’s distinct care-related and compassionate qualities that she ties to their biology or more precisely to their ability to become pregnant. Although Libresco Sargeant rejects Andrews’s assertion that feminine traits are inherently inferior to masculine ones, she nonetheless advances a similarly essentialist rhetoric that reduces women’s nature to innate caregiving and reproductive capacities, thereby echoing patriarchal stereotypes of women.
Historically, patriarchal structures sought to undermine feminist ideas by associating feminism with negative stereotypes such as militancy, radicalism, misandry, and the rejection of femininity. What we are witnessing today is a far more sophisticated campaign: feminism has been seized by populist and religious fundamentalist actors who redefine it as a sexist ideology that affirms, rather than challenges, patriarchal norms. So, following Prof. Stolper’s important book and as we chart the various threats to gender equality in this era of democratic backsliding, rising populism, and religious fundamentalism, we must recognize that the hostile takeover of feminism itself is an additional aspect of the contemporary assault on gender equality.
[1]Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[2]New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
[3] Adam Hamdan, Rule for Thee but not for Me: From Roberts to Vinson, a Statistical Analysis of the Role of Religion in the Supreme Court, Cambridge Journal of Political Affairs Vol. 6(1) 178-199 (2025)
