Arguments from Failure: A New Theory of Judicial Review and Restraint

Rosalind Dixon

In her important new book, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law, Michaela Hailbronner turns her attention from constitutional transformation¹ to its absence, or from the idea of large-scale, successful constitutional change to that of “Institutional failure … as a shorthand for a range of other terms such as policy or state failure, dysfunction and state failure, dysfunction, and structural or systemic deficits.” (P. 3.)

Institutional failure, Hailbronner argues, has been a focus of other disciplines such as economics and public policy for a long time—but lawyers, she suggests, are “as usual, late to the party.” (P. 3.) This is an omission to be rectified: By paying attention to discourses around institutional failure, we gain new insights about public understandings, “relationships and institutional self-perception.” (P. 5.) With a focus on institutional failure, new justifications for the expansion of institutional authority or action likewise come into view. This is true, Hailbronner suggests, whether those arguments are made explicitly or implicitly: the choice surely depends on who is talking and in what context.

Similar virtues apply to the study of constitutional amendment failure, or constitutional non-amendment: studies of this kind not only shed light on the necessary preconditions for successful constitutional change, they can also reveal deep-seated commitments or values within a society, which are impervious to change, and hence candidates for being understood as politically entrenched, small “c” constitutional values.

In either event, Hailbronner shows that arguments of this kind resonate both in theory and existing practice—including at an international level (Pp. 65-66, Part III), and in national contexts such as structural reform litigation. (Chapter 4.)

This claim fits with a growing body of comparative work on the idea of constitutional judicial review by courts as “representation-reinforcing”—or what elsewhere I have called “comparative representation-reinforcing theory” (‘CRRT’) and Stephen Gardbaum labelled “comparative political process theory” (‘CPPT’).² Hailbronner herself notes this connection (Chapter 5), and the close affinities between her work and my own on “responsive” approaches to judicial review. (Pp. 13, 104-6.) That work, for example, makes arguments for broader and stronger forms of judicial review given evidence of three broad forms of institutional failure or dysfunction: democratic blind spots, burdens of inertia and sources of institutional or electoral monopoly power.

There are similar affinities with the work of other CRRT/CPPT scholars, including Landau, Cepeda Espinosa, Langford, Peterson, and Gardbaum.³ Hailbronner specifically acknowledges the connection to Landau’s work here (P. 49)—including his work on institutional failure. (P. 39.)⁴ She also usefully connects her own and others’ ideas in this tradition to theories of democratic experimentalism (Pp. 43-49), including leading American theories of experimentalism centred around structural litigation. (Pp. 84-88.)

Hailbronner’s arguments are likewise sympathetic to arguments about the shared—or in Aileen Kavanagh’s language “collaborative”⁵—nature of institutional authority and responsibility for constitutional enforcement. (Pp. 41-42). This includes the sharing of authority between courts and legislatures, but also “fourth branch” or “guarantor” institutions.⁶

Hailbronner, however, goes further than most scholars working in this tradition in applying a lens of institutional dysfunction to a wide range of institutions—including those between national and sub-national institutions, national and transnational institutions, and institutions at a transnational level. (Part III.) This is an important contribution. Constitutional scholarship is often rightly criticized for being overly court-centric. Not so Hailbronner’s work.

As constitutional scholars, we are often called out for overlooking the complex interactions between different levels of government, and sources of law. The same cannot be said for Hailbronner, given the extensive attention she gives to international, regional and national contexts, including federal systems. (Pp. 24-25, Part III.)

Hailbronner is also attentive to the two important dimensions of arguments from institutional failure: what might be called the “corrective” and “reform” argument. Corrective arguments are often backward looking in focus—or focused on the task of repairing past damage, or righting past wrongs. Reform arguments, in contrast, focus on how to make institutions function better in the future—and therefore on increasing institutional capacity, or improving institutional processes.

Hailbronner provides illustrations of both dynamics as arguments from failure for more active institutional oversight. The real challenge for Hailbronner’s theory—and similar CRRT-style theories—is how to account for the need simultaneously to promote institutional correction and reform. Too great a focus on reform can leave past harms unaddressed, and individuals lacking basic forms of justice. But too great a focus on correction can have its own perverse consequences.

As individuals, if our mistakes are consistently corrected by others, there is little reason to put in the time or effort needed to make positive change. The same applies to institutions. Too frequent a form of external correction of institutional failure can mean that institutional leaders lose the motivation—and sometimes even the public justification—needed to engage in reform. This is what Mark Tushnet calls the problem of “democratic debilitation”.⁷ And as Tushnet himself (along with Madhav Khosla) notes, part of the aim of public law should be to enhance state capacity—in all areas, including the constitutional domain. (P. 107.)⁸

Hailbronner is alive to this trade-off. (Pp. 34-37.) This is one reason she develops a form of balancing or proportionality test that allows us to test the strength of arguments from institutional failure, compared to arguments from institutional restraint: a test that invites institutions to “assess the functionality, necessity and costs associated with the transgression of an institution’s ordinary role”, along with the “the likelihood of success” of any institutional intervention. (Chapters 5-6.) That is, prior to any intervention based on arguments from failure, Hailbronner invites courts and other guarantor institutions to consider (to paraphrase): (i) the number of alleged constitutional violations, (ii) the time frame involved (and whether they are repeated or not); (iii) their scale and gravity; and (iv) whether they were intended, or the product of government recklessness, negligence or oversight (Pp. 111-125), as well as the potential costs of intervention, in terms of institutional capacity, authority and motivation. (Chapter 6.)

This is a core part of the book’s contribution. Arguments from institutional failure are powerful, but must be carefully balanced against valid counterarguments—stemming both from traditional separation of powers concerns, and more functionalist concerns about institutional over-reach and debilitation. They must also be developed and applied with the risk of misuse/abuse in mind. And this is exactly what Hailbronner attempts to achieve in the latter part of the book. (See especially Chapter 9.)

The only remaining question is whether institutional actors themselves will be capable of applying this form of balancing test in a manner that shows fidelity to these concerns. Institutional capacity is one of the most frequent challenges posed to my own work on CRRT—and a powerful one. Do judges, for example, have the capacity accurately to assess the necessity of their own intervention? Or are they prone to over-estimate their own institutional significance, or efficacy, and hence duty to intervene to correct other institutions’ failures?⁹ Or conversely, will some judges under-estimate the need for such intervention, and adhere instead to a more formalist commitment to the separation of powers? The same could be said for a range of fourth branch or guarantor bodies, or even legislators.

One answer to this could be that Hailbronner’s test could usefully be elaborated in various institutional settings to provide more concrete, rule-like guidance to institutional decision-makers about how to approach this balancing task. This, for example, is the approach taken by Cora Chan in her important new book on Deference in Human Rights Adjudication.¹⁰

Another could be that Hailbronner’s project must be understood as involving two-stages: one stage, which is now complete, involves the articulation of a scholarly vision for an institutional role that depends on arguments from failure; and another, as yet incomplete stage, which involves socializing judges, legislators and members of the fourth branch in this vision, its rationale, and what it entails for them as institutional actors.

This seems to me to be at least part of the answer to the institutional capacity question, and one that is far from insurmountable. It does, however, stretch our own capacities as scholars. But if there is any scholar capable of meeting that challenge—it is surely Hailbronner. And other CRRT scholars will be standing right beside her, as she seeks to answer it.

1. Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism (2015).
2. Stephen Gardbaum, Comparative Political Process Theory, 18 Int’l J. Const. L. 1429 (2020). See also Rosalind Dixon, Courts and Comparative Representation Reinforcing Theory, 14 Glob. Const. 206 (2025).
3. Sujit Choudhry, “He Had a Mandate”: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy, 2 Const. Ct. Rev. 1 (2009); Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (2023); David Landau, A Dynamic Theory of Judicial Role, 55 B.C.L. Rev. 1501 (2014); Manuel José Cepeda Espinosa & David Landau, A Broad Read of Ely: Political Process Theory for Fragile Democracies, 19 Int’l J. Const. L. 548 (2021); Manuel José Cepeda Espinosa, Responsive Constitutionalism, 15 Annu. Rev. Law Soc. Sci. 21(2019); Gardbaum, supra note 3; Samuel Issacharoff, Democracy Unmoored: Populism and the Corruption of Popular Sovereignty (2023); Samuel Issacharoff et al., The Law of Democracy: Legal Regulation of the Political Process (1998); Samuel Issacharoff and Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan. L. Rev. 643 (1998); Malcolm Langford, Why Judicial Review?, 2 Oslo L. Rev. 36, 55 (2015); Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (2017).
4. David Landau, Institutional Failure and Intertemporal Theories of Judicial Role in the Global South, in The Evolution of The Separation of Powers: Between the Global North and the Global South (David Bilchitz & David Landau eds., 2018).
5. Aileen Kavanagh, The Collaborative Constitution (2023).
6. Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (2021); Tarunabh Khaitan, Guarantor Institutions, 16 Asian J. Comp. L. 40 (2021).
7. Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995). See discussion in Dixon, Responsive Judicial Review, supra note 4, at Ch. 5.
8. Madhav Khosla and Mark Tushnet, Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry, 70 Am. J. Comp. L. 95 (2022).
9. Cf Rosalind Dixon and David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).
10. Cora Chan, Deference in Human Rights Adjudication (2024).