This selection of books by Konstantin Kipp attempts to present recent arguments about the role that law and courts can play, both in posing challenges to democracy and in entrenching inequality, but also in their transformative potential to address democratic problems, protect people’s rights, and enable a more equal world.
Richard Bellamy, Defending the Political Constitution. Oxford: Oxford University Press, 2026.
The world has changed since Richard Bellamy published his first defense of political constitutionalism. Since 2007, many legal constitutional systems have failed to provide meaningful safeguards against authoritarian threats. Some argue that these developments demonstrate the need to strengthen the resilience of constitutional systems through legal constitutionalism, especially by safeguarding judicial independence. Others might find that they validate Bellamy’s claim that the rule of law is nothing more than the democratic rule of persons. Bellamy himself defends his thesis in a new chapter. Another long-running debate to which this directly relates concerns the merits of strong constitutional courts engaging in judicial review. Are constitutional courts vital safeguards for protecting democracies, or do they primarily threaten democracy by engaging in interpretations beyond their mandate, thereby curtailing parliamentary sovereignty? A current example shows that this debate remains far from resolved. The Court of Justice of the European Union’s (CJEU) increasingly broad interpretation of the Union’s foundational values has been met with both acclaim and concern. Critics have argued that broad interpretations by the Court in this field are undemocratic and may undermine constitutional pluralism in the EU. Drawing on such criticism, one of Bellamy’s chapters argues for a demoi-cratic conception of the EU, in line with political constitutionalism, in which the Court would play a decidedly less important role.
Michaela Hailbronner, The Failures of Others: Justifying Institutional Expansion in Comparative Public and International Law. Cambridge: Cambridge University Press, 2025.
The critique of apex courts going beyond merely speaking and interpreting the law is old and ingrained in the constitutional cultures of various countries. What has perhaps received less attention is the fact that when courts choose to interpret legal texts in ways that seem to surpass the limits of their constitutional mandate, they often do so in response to the failures of other institutions to act. If a constitution is too difficult to amend and thus prevents necessary change, or if other political institutions are unable to provide solutions to a problem, it is often the courts that step in. Change is inevitable and must find an outlet somewhere. This does not shield such acts from criticism, but it adds nuance and helps us see the problems more clearly. Drawing on examples from a wide range of legal systems – for example, India, South Africa, Colombia, and Spain – Michaela Hailbronner’s new book analyzes and compares arguments for court action arising from the failures of other institutions. Such arguments are found to be a double-edged sword. They have the potential to enhance governance and to confer legitimacy on necessary fixes for problematic situations. However, the standard of public legitimacy they tend to privilege is one of output rather than input legitimacy. This privileging is prone to undermining democracy and may even enable authoritarian modes of governance.
Stéphanie Hennette Vauchez & Antoine Vauchez, Des juges bien trop sages: Qui protège encore notre liberté? Paris: Éditions du Seuil, 2025.
A further book highlights how difficult these debates are. Criticism of the absence of judicial intervention comes from a system that has traditionally been very suspicious of strong courts. Because courts had been controlled by the ruling nobility before the Revolution, France long adopted Montesquieu’s dogma that courts should be no more than “la bouche de la loi.” They would merely speak the law adopted by Parliament, whereas bold interventions or interpretations were viewed critically. The fundamentally different role France’s high courts play, compared with those of other countries, when it comes to countering executive action, becomes particularly clear when one considers that one of them, the Conseil d’État, is still named after its original role – an adviser to the government, rather than a court tasked with protecting people’s rights. Bold judicial intervention against governmental action is therefore more unusual in France than in many other legal cultures. However, today Stéphanie Hennette-Vauchez and Antoine Vauchez ask whether the country’s judges, who are supposed to protect citizens’ rights, have become too lenient toward the actions of the French executive. The country has experienced prolonged states of emergency with serious implications for citizens’ rights and relatively little judicial intervention during the past decade. According to the authors, the courts have, in many instances, failed to protect citizens’ liberties and thus diminished their importance in the legal system. This is particularly relevant as France will hold presidential elections in 2027, and many fear a victory for the far right. The book raises important questions for such a scenario, as it remains uncertain whether the French judicial system is equipped to confront a far-right president attempting to undermine democracy and the rule of law.
Hanna Eklund (ed.), Colonialism and the EU Legal Order. Cambridge: Cambridge University Press, 2025.
A contribution on how law and courts have become servants of injustice comes from a volume edited by Hanna Eklund that brings together sixteen contributions on the relationship between colonialism and the EU’s legal system. While colonialism formally ended when the EU was still in its relatively early days, coloniality has persisted within the EU’s legal system (one of the book’s contributors, Janine Silga, has discussed this in an interview with RevDem). Thus, the book is not merely a historical analysis but also helps us understand how European law entrenches injustice today. A wide range of topics is analyzed by the various contributors: from how law was used to establish differentiated migration regimes that grant white people one of the EU’s most important rights – the freedom of movement – while excluding racialized others (Karim Fertikh), to the relationship between Brexit and colonial legacies in Northern Ireland (Stephen Coutts). A recurring theme is the way in which the law is used to ensure that former colonies remain part of the Union’s capitalist economic order while hindering people from those colonies from ever fully profiting from this project. The book’s final chapter, by Iyiola Solanke, therefore proposes a new starting point. It is a call for the decolonization of research and teaching in EU law. Such an approach might help overcome colonial legacies in EU law in the future.
Katharina Pistor, The Law of Capitalism and How to Transform It. New Haven: Yale University Press, 2025.
Law often serves as a tool to entrench colonial legacies and a capitalist order, but it also bears the potential for change. In her 2019 book The Code of Capital: How the Law Creates Wealth and Inequality, Katharina Pistor argued that capitalism has been codified by law – that it is law that has created the capitalist order. Over long-running processes, attorneys, the masters of the code, have developed different legal devices, such as trusts, mortgages, and ownership titles, to protect the wealth and dominance of tiny parts of society. Six years later, Pistor advances proposals on how to change the dynamics she has analyzed. One issue Pistor identifies is that when law is used to counter the excesses of capitalism, for example, after financial crises, this is often done through public law. Private law – such as trust funds, mortgage deeds, or patents – which constitutes the true code of capitalism, however, often remains untouched. This body of private law is particularly apt to insulate itself from public law, or even to use it to its own benefit. If one truly wants to change the legal foundations of capitalism, it is therefore necessary to address and transform its main modes of operation, which stem from private law. Pistor provided a more detailed explanation of this in a keynote speech at the CEU Democracy Institute’s annual conference on Excessive Wealth Concentration and Democracy last summer that can be watched here.
