Rights into Structures: Judging in a Time of Democratic Backsliding

Abstract This article explores how the new generation of legalistic autocrats consolidates power—not by committing mass human rights violations as a way of consolidating power as authoritarians of the twentieth century did, but instead by attacking checks and balances so that democratic institutions are weakened. Judges at transnational courts, faced with evidence of these attacks, are developing a jurisprudence through which they transform the vindication of individual rights into requirements that states maintain democratic structures. While it is not clear if this jurisprudence prevents backsliding, it may become useful as new democrats attempt to restore constitutional institutions using these decisions as guidelines for democratic reform. In doing so, new democrats would be giving meaning to the rule of law writ large.