The Failures of Others
The Failures of Others
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Arguments from failure – arguments that an institution must expand its powers because another institution is failing in some way 'to do its job' – are commonplace. From structural reform litigation, where courts sometimes assume administrative or legislative functions, to the Uniting for Peace Resolution of the UN General Assembly, to the recent bill quashing British subpostmasters' convictions – such arguments are offered in justification for unorthodox exercises of public power. But in spite of their popularity, we lack a good understanding of these arguments in legal terms. This is partly because failure itself is a highly malleable concept and partly because arguments from failure blur into other more familiar legal doctrines about implied powers or emergencies. We can do better. We should recognize arguments from failure as a distinct concept of public law and understand that contemporary constitutional theory offers us tools to evaluate such arguments in different settings.
- Offers the first exploration of arguments from failure – when institutions expand their power in response to the real or alleged failure of others – and a legal perspective on institutional failure more broadly.
- Identifies and analyzes these arguments in a range of different contexts, from structural reform litigation in the US, India, South Africa and Colombia to German and UK examples as well European law and international law
- Provides a normative framework, grounded in the principles of the separation of powers, democracy and the rule of law to assess the legitimacy of these arguments in a variety of contexts
Reviews & endorsements
'What should we do when those who wield power fail? In a subtle and nuanced analysis, Michaela Hailbronner tackles this question with insight and originality. Drawing on case-studies from comparative constitutional law, the European Union, and international law, Hailbronner makes a powerful case that we need to take institutional failure seriously - not just as a cause for lament or an automatic licence to deviate from established legal norms, but as a stimulus for a more measured and context-specific approach. All public lawyers will benefit from engaging with Hailbronner's illuminating and compelling arguments.' Aileen Kavanagh, Professor of Constitutional Governance, Law, Trinity College Dublin
'Institutions fail in ways that spell bad news for a project of democratic constitutionalism - but can also provide invaluable lessons. Institutional failure can be a powerful reason for other institutions to step up to uphold constitutional norms - and Hailbronner constructs a sophisticated account of what this kind of failure-sensitive approach to judicial review might look like. The book should be compulsory reading for all those interested in the future of constitutionalism.' Rosalind Dixon, Professor of Law and Director of the Gilbert + Tobin Centre of Public Law, University of New South Wales, Sydney
'Michaela Hailbronner has written an exceptional and well argued book, in which she studies the problem of institutional failure. She does so in a very attractive way, concerned about the (tragic) phenomenon of 'authoritarian erosion'; and still hopeful about structural reform litigation.' Roberto Gargarella, Professor of Law at the Torcuato di Tella University and the University of Buenos Aires
'This brilliant and imaginative work underscores how legal efforts are often a response to our broken institutional reality. The Failures of Others not only clarifies our doctrinal landscape - it offers us a new way to inform and shape our constitutional future.' Madhav Khosla, B. R. Ambedkar Professor of Indian Constitutional Law and Professor of Political Science, Columbia University
Product details
October 2025Hardback
9781009646666
270 pages
229 × 152 mm
Not yet published - available from October 2025
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Table of Contents
- Introduction
- Part I. Why Failure Matters – And What Follows from That:
- 1. What are arguments failure and when might we need them?
- 2. Safe, legal and rare: the case for and against arguments from failure
- 3. Proportionality
- 4. Structural reform litigation in domestic courts
- 5. A framework for structural reform litigation
- 6. Failure and legal innovation: arguments from failure as judicial trumps
- Part III. 7. Arguments from failure in international law
- 8. Efficiency and failure in the European union
- 9. Conclusion and perspectives
- Bibliography
- Index.
