While there are reasons to be skeptical about the possibility of complete or sufficient justice and accountability for this President given the pitiful record running from Watergate to Iran-Contra to January 6th, it is not an all or nothing proposition. Even with accountability processes responding to grave crimes, not every wrong or atrocity can be remedied.

Despite these limitations, if at least some of the wrongs can be documented and sanctioned, the effort would be justified both for the sake of justice and legitimacy.

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Transitional justice to restore the rule of law

The US is not unique in confronting rule of law breakdowns. Many countries following massive breaches of human rights and rule of law have taken steps to address prior regimes’ wrongs, typically referred to as transitional justice processes. In cases of grevious wrongdoing, societies cannot simply forget about it and move on. Some form of reckoning is needed to provide closure before they can try to rebuild rule of law institutions.

Transitional justice processes have been central to reconstituting political orders after mass violence and civil wars. Following World War II, the Allies carried out war crime prosecutions in Germany and Japan. After the end of apartheid in South Africa, the Truth and Reconciliation Commission (TRC) heard testimony from victims and perpetrators about the crimes against humanity carried out under the regime. Both Argentina and Chile undertook similar processes for addressing horrendous human rights abuses including enforced disappearances by their respective authoritarian regimes. Over the past fifty years, at least 90 countries have conducted some type of transitional justice process.

In these cases, the roles of officials and even ordinary citizens have been scrutinized. Yet the response to rule of law violations of these different actors is complicated.

When should people be punished as opposed to simply publicly acknowledging and disavowing their actions, for instance? What conduct should be considered disqualifying for persons employed by the state who may have been involved in the abuses?

There is much more to say about this question in planning the post-Trump reconstruction process. It’s obvious this won’t be a simple or straightfoward matter. But it’s also evident that planning needs to begin now.

Despite the complexity of the challenge, there’s one class of persons for whom the basis for transitional justice is already in place and largely uncontroversial in its main elements: lawyers.

Lawyers against the law

After the collusive Trump-IRS lawsuit and so-called weaponization fund unravelled, the role of lawyers in this and other abuses is starting to come under greater scrutiny.

Lawyers take an oath to uphold the rule of law and intentional efforts to subvert it violate that obligation.

Following the submission of a brief by 35 former judges alleging abuses by the DOJ in extracting a settlement from the IRS, the district court judge Kathleen Williams blocked the fund and effectively opened the door to examining the conduct of the lawyers in the case.

In the US unlike many other countries facing rule of law breakdowns, substantial elements of the legal system remain intact. That means that many of the efforts to subvert the rule of law by the Trump Administration have been carried out through the legal system with government and private lawyers working for the administration playing central roles.

Aside from some high profile cases like January 6th enabler John Eastman’s disbarment in California, Trump’s lawyers have not generally faced ethics charges for their efforts to undermine the rule of law. Former Attorney General Pam Bondi may yet face discipline for various ethics violations although this outcome remains to be seen.

Yet if transitional justice lessons tell us anything, it is that the rule of law cannot be restored if persons who actively sought to destroy the rule of law are not held accountable.

The challenges of holding the legal profession accountable for its role in subverting the rule of law are both practical and philosophical. The noted South African-Canadian philosopher of law, David Dyzenhaus, wrote a remarkable account of the TRC hearings focusing on the role of judges and lawyers under apartheid.

Apartheid judges were just following orders

The challenges of this type of process were evident from the start. The entire South African judiciary refused to participate on the logically-strained grounds of judicial independence. Confronted with a legacy of its role in perpetuating crimes against humanity, the judiciary’s response essentially begged the question of whether it bore responsibility for apartheid’s atrocities.

A jurisprudential challenge that the judiciary’s posture reflected was a version of the Nurenberg Defense. If the law is what the government says it is, can judges or lawyers be wrong in applying it even if evil?

We can expect former Trump Administration officials to make similar claims for immunity for their official acts.

Given the chasm in political views in the US, any approach to achieving accountability will have to be done in a nonpartisan manner. State bar disciplinary bodies may be the most appropriate vehicle.

Another technique that has been used notably in some post-communist Eastern European countries is the notion of lustration, which involves examination of persons’ conduct during prior regimes before they may work in goverment again. The rationale for such measures is that officials who participate in grievous injustices should not be given roles in newly reconstituted polities.

Recent US experience with any kind of accountability for Trump and his supporters has fallen short of even modest goals. For context, in some countries, attempting to overthrow the government would disqualify someone from public office for life. Brazil successfully prosecuted Jair Bolsonaro for his attempted coup, though his son is currently seeking office to reverse his father’s conviction.

Rather than accountability, the January 6 perpetrators and their enablers have launched an incessant whitewash and revisionist history campaign that has achieved a permanent place in American political discourse. This outcome ought not be repeated.

Planning for justice and accountability

Although the levels of violence and repression in the US have fortunately not been comparable to other countries that have taken transitional justice measures, given the severity and intentionality of the efforts to dismantle the rule of law by the Trump Administration, the rule of law cannot be rebuilt without addressing individual culpability. However it happens, the actors responsible for these efforts cannot be trusted to work in government again.

Individual facts and circumstances will differ, but significant numbers of Trump officials have violated their basic duties as lawyers to see that justice is done. As the Trump presidency exhibits increasing signs of terminal decline, concrete plans must be made for measures that will clarify the record, expose wrongdoing, and hold ethical and criminal violators to account.

Anything less will mean the foundations for the rule of law in the US will be left fundamentally shakier and society’s commitment to it much hollower.

As I’ve discussed in prior pieces, state fiscal capacity is crucial to creating a functional bureaucracy necessary to uphold rule of law standards. The judiciary, public sector administration, and police all require resources that taxation provides. Very poor countries typically lack efficient and effective fiscal capacity and resources, thus impeding measures to build rule of law. Effective law and governance facilitate economic growth, thereby increasing the tax base, which drives a virtuous cycle of improvements in government capacity that reinforce rule of law and governance standards.

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Aside from helping to preserve such standards, rule of law concerns are central to driving political settlements and the resulting acceptance of state legitimacy that build functional tax systems in the first instance.

Taxation and governance develop together

A canonical article by Douglas North and Barry Weingast illustrates this phenomenon. The story begins with the Glorious Revolution when William of Orange and Mary Stuart were crowned in 1689. In the North and Weingast account, among the changes was a “fiscal revolution”, which gave parliament the exclusive power to impose new taxes. Additional reforms gave parliament power to audit, monitor, and veto expenditures.

These fiscal agreements were part of a broader series of political reforms, which through “credible threats” would ensure that the Crown adhered to its commitments. In addition to overall parliamentary supremacy, the reforms established judicial independence and curtailed the Crown’s ability to violate political liberties and rights. North and Weingast argued that “in exchange for the greater say in government, parliamentary interests agreed to put the government on a sound financial footing, that is, they agreed to provide sufficient tax revenue.”

If political agreements on taxation can help generate and sustain rule of law, compliance with tax policy has been shown to be both reflective and constitutive of broader cultures of legality. A 2009 book by Marcelo Bregman examines the dramatically different levels of tax compliance in Argentina (low) and Chile (high). He argues that tax evasion is a product of culture rooted in social norms and institutional arrangements.

Bregman finds that tax dodging is bad not only because it compromises the ability of the state to foster economic development but because it undermines the state’s legitimacy.

“It is harder for states that fail to elicit high tax compliance to gain wide approval, because the quality of public goods in such states diminishes. Conversely, higher compliance is self-sustaining because it enables sound fiscal policies that promote improved consent.”

Reading his account it’s difficult not to pin much blame for Argentina’s dismal economic and governance record to its poor tax compliance.

From tax reform to state self-harm

The deep connection of taxation to the rule of law is why Trump’s effort to gut government revenue capabilities is so central to his agenda. No doubt self-interest and opportunism are major motivations. But it goes further than this.

Indeed, the moves are in a different class to traditional conservatives’ struggles to reduce tax rates. The strategy is part of the broader ungoverning agenda and desire to undermine social solidarity.

The initial results of the administration’s nonfeasance are already in. Reuters reports that the “Trump administration dramatically reduced efforts to pursue tax cheats in 2025….shedding tens of thousands of employees at the Internal Revenue Service, including those charged with ‌enforcement.” Based on data from a Freedom of Information Act request, the news agency found a five per cent decline in government revenues due to reduced enforcement actions in 2025. Evidently, another 10,000 enforcement staff are slated to be axed in the coming year.

Sabotaging taxation is central to ungoverning but it is also instrumental to eroding the very foundations of civic life, social order, and the very ability of the state to uphold the law.

While citizens everywhere dislike paying taxes, it’s like going to the dentist. Although few relish the experience, most people, most of the time, mostly pay their taxes. With taxes, as in most other aspects of our social lives, voluntary compliance is essential.

By undercutting the basic legitimacy of the tax system, Trumpism undercuts the basis of a shared civic life and a reasonably harmonious polity.

Transparent, in a different sense

Given that the rule of law functions in part based on a shared ethos, fomenting distrust in the system of taxation is tantamount to destroying the basis for citizens’ connection to the state. While we expect lots from our governments, the predominant thing governments seek in return is our taxes.

Gut the tax system, and you gut the state. Gut the state, and you’ve killed the rule of law.

While the Trump Administration is generally not known for transparency, its motives here are open for all to see.

In a similar vein the OpenAI lawsuit reveals the law-free world envisaged by today’s techno-libertarians (or if you prefer techno-anarchists) like Musk to be mere posturing. In reality, when things get serious, the would-be libertarians lawyer up like the best of them.

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Law, law, and more law

Musk’s suit epitomizes the myriad ways the tech titans rely on the legal system at every step in their dealings.

Multiple layers of legal claims underlie the case. The basis of the complaint is the creation of a nonprofit corporation and a series of limited partnerships under Delaware law.

To create the entities, company and limited partnership law must exist and the administrative structures for issuing documentation must also function. Due to Delaware’s competent and efficient bureaucracy these rules can be relied upon to structure deals creatively as evidenced by the 20 limited partnerships formed under the main OpenAI nonprofit company. (Colleagues practicing in foreign jurisdictions marvel at the fact that one can set up a corporation in just minutes in Delaware.)

Likewise, for nonprofit entities to be established, the federal government had to create a statute recognizing their tax free status and enabling them to claim tax exemption.

The substance of the suit alleges a litany of wrongs that fall into three main categories. The first includes a variety of fraud claims. The second is based on the federal civil racketeering (RICO) statute. The third asserts various instances of unfair dealing, including breach of contract, unfair competition, breach of fiduciary duty, false advertising, and tortious interference with contract. The three sets of arguments are based on federal, Delaware and California law. (The latter is rather ironic, given that Musk claimed to have relocated to Texas to avoid the Golden State’s onerous legal and regulatory standards.)

Law makes the market

The role of law in facilitating investment and commerce is a common theme of this newsletter. Rather than merely facilitating trade and investment, the legal system actually constitutes the market. Without instruments of contract and property law, people don’t invest and trade is limited. As Musk’s lawsuit shows, every aspect of OpenAI and his transactions with it are legally structured.

The appeal of these legal structures is based on their enforceability. When techno-libertarians want to execute their legal claims, they rely on the courts and, when circumstances require, the police. The fact that both courts and police are established and maintained by tax revenues is never acknowledged.

Techno-libertarians’ policy and ideological views are not often scrutinized for consistency with their actions. The reality is that they don’t actually want to eliminate the law. Rather they want to use the legal system solely for their ends. They want all of the rights but none of the responsibilities that law entails. They want to carve themselves out of the political community that sustains the legal system that is the foundation for their wealth.

Sovereignty on demand

What the techno-liberatarians seek is not the absence of the state but instead, what Quinn Slobodian and Ben Tarnoff capture brilliantly in their new book Muskism: A Guide for the Perplexed, “sovereignty-as-a-service”. They show that techno-libertarians are incredibly dependent upon the state—but only when they need it.

Though overused at this point, David Foster Wallace’s observation about the fish and water is apt. Swimming in an ocean of law that has enabled the development of the entire technology industry, the techno-libertarians no longer see their environment. Yet the law and strong state institutions permeate every aspect of their lives and is the basis upon which their individual businesses and the entire technology ecosystem exists.

If you really want to know what the techno-libertarian bros really believe, don’t listen to what they say, watch what they do in court.

Over 16 years, Orbán had systematically entrenched his party and himself, gutting key institutions including the judiciary, independent governmental bodies, the media, and universities. The victor, Péter Magyar’s Tisza Party, will seek to rebuild rule of law, however the scope of the challenge is massive.

Experience in Poland after the 2023 parliamentary elections which removed the anti-rule of law Law and Justice Party holds important lessons for Hungary. Beyond Europe, both the Hungarian and Polish experiences provide grounds for optimism but also caution in thinking about the tasks facing the United States in reversing the damage to rule of law and democracy caused by Donald Trump’s Administration.

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How Orbán broke the rule of law

It is difficult to exaggerate the extent to which the Orbán government weakened the rule of law in Hungary. The fact that Orbán and his close supporters had legal backgrounds gave them important technical skills in realizing their anti-rule of law aims.

From the beginning of Orbán’s second stint in office in 2010, he set about undermining institutions and stacking government offices with loyalists. While the scope of the changes were far-reaching as noted above, examining some of the specifics conveys the degree of their anti-democratic and corrupt nature. (For a very helpful and detailed summary see this recent paper by Johan Norberg.)

A foundational step was drafting a new constitution. The process excluded opposition parties and no national consultations or referrenda were conducted.

Under the new constitution, requirements that Constitutional Court nominees be approved by an all-party parliamentary committee were eliminated in favor of a process controlled by Fidenz, the number of judges were increased from 11 to 15, and the mandatory retirement age was dropped from 70 to 62. Rules on standing for litigants were tightened and the Constitutional Court’s powers to review budgetary or tax matters were eliminated.

The government also created a National Judicial Office led by a Fidenz appointee. Astonishingly, the head of the office was empowered to hire, promote, or remove any judge in the country and could move any case, such as a corruption prosecution, to a court of its choosing.

To cement the breakdown of checks and balances, Fidenz supporters were handed sweeping control over the “State Audit Office, Prosecutor General’s Office, tax authorities, National Bank, Media Council, Central Statistical Office, and ombudsman,” Norberg writes.

The impact of these changes is well documented. According to the World Bank’s Worldwide Governance Indicators, Hungary’s ratings fell dramatically between 2010 and 2024 across categories ranging from rule of law and voice and accountability to regulatory quality and control of corruption. The Varieties of Democracy’s Liberal Democracy Index identifies Hungary as the least free in the European Union and the country that had declined the most in 15 years worldwide. Likewise, the World Justice Project ranks Hungary as 79th out of 143 countries, dead last in the EU.

Poland’s unrealised reforms

The contrast with Poland’s experience suggests relatively greater likelihood of success in Hungary. From 2015 to 2023, the Law and Justice (LJP) party in Poland introduced many similar types of changes to those in Hungary. Crucial were its efforts to remake the judiciary by reducing institutions for merit-based hiring of judges and stacking the courts with many unqualified partisans.

The election of Donald Tusk in 2023 was generally seen as a repudiation of the anti-rule of law efforts of LJP. To begin the process of dismantling LJP’s anti-rule of law changes, the Tusk government advanced an agenda for restoring the rule of law and set out to implement it.

Unfortunately, many of the reforms required a two-thirds majority in Parliament and Tusk’s government fell just short of this level, meaning that few reforms have been implemented.

Yet the biggest problem with the reform process emerged in June 2025 when a LJP candidate won the Presidential election. Unlike other parliamentary systems, the Polish presidency is powerful and the new President can block rule of law reforms. Worse still, it appears that the LJP is well-positioned to retake power in parliamentary elections due for 2027.

Expect Magyar to deliver

In this regard, the electoral result in Hungary appears even more positive. The new Magyar government holds a comfortable supermajority in Parliament, which is more than sufficient to undo the anti-rule of law changes Orbán brought about, notably by reversing important deficiencies in public law and the constitution.

The fact that Hungary’s legislature is unicameral is a further advantage. Yet as in Poland, the Presidency will be held by a Fidenz member until 2029. While the president’s powers are somewhat less than in Poland, he also has veto power and can appoint judges and refer cases to the Constitutional Court.

Common to both the Polish and Hungarian cases is the role of the European Union in countering the demise of rule of law. Both countries were subject to proceedings under Article 7 of the Treaty on European Union, which pertains to member states which seriously and persistently breach the values on which the EU was founded. The consistent pressure of the EU in exposing the rule of law, corruption, and democratic governance violations and imposing sanctions on both countries was a clear factor in the ability of both countries’ opposition parties to galvanize voters.

Unfortunately, the EU may have acted too hastily in removing some of conditions on Poland. Shortly after the Tusk government’s submitted a plan for restoring the rule of law in 2024, the EU withdrew the Article 7 proceedings. It is unlikely that the EU will repeat the mistake in Hungary.

One matter that the new Hungarian government is likely to pursue is accountability for the corruption and other violations of the law by Orbán and his associates. To recoup some of Orbán cronies’ ill-gotten gains, Prime Minister-elect Magyar has promised the creation of a National Asset Recovery and Protection Office among other measures. It is unclear how extensive other accountability measures will be.

Both the Polish and Hungarian experiences suggest that democracies can reverse rule of law and democratic backsliding. Yet, it is also clear that expurgating the unjust institutional changes and removing officials who can act as veto players is less certain. Paradoxically, it is the nature of rule of law in constitutional democracies that makes it difficult to eliminate changes designed to weaken those systems.

Reasons for electoral hope, but institutional headwinds will persist

For the US, once Trump’s rule ends, rebuilding the rule of law will be a longer term proposition. Restoring institutions from inspectors general to ombuds that have been eliminated or gutted will require legislative and executive action. Restoring some balance in the Supreme Court could take generations. As seen in the lack of accountability for the January 6 attempted coup, it is unclear the extent to which the feast of official corruption underway will ever meet justice.

For now it is exciting to think that Hungary may finally reverse the course of democratic destruction and corruption. The lesson for voters everywhere is that destroying constitutional democracies can happen very quickly but rebuilding them is a much less certain and daunting proposition.

Telling this story will require a bit of a longer piece than my normal posts. It’s a first take at pulling together the strands of various developments to separate signal from noise, help make sense of what is happening, and try to understand where the world is heading.

There are four main strands to the story. First, concerns military power today. Second, the extent of global interdependence and complexity of our social and economic systems. Third concerns the form of governance that will prevail. These three phenomena are already manifest. The fourth strand derives from the former elements and relates to the forms global cooperation will take in the coming years.

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Military power and military futility

The speed and ferocity of the military campaign against Iran are remarkable testaments to the vast amounts of military spending that the US and Israel have used to develop technologically advanced hardware. These weapons systems are among the most powerful and capable ever created. Their ability to inflict untold damage on physical infrastructure and human lives is unparalleled. Yet, somewhat ironically they are inadequate to achieve political goals.

Despite America’s vast military expenditures, it’s been widely observed that the US has not won a major war in the past 80 years. When you consider that the US spent more than $825 billion fighting in Afghanistan, it seems likely that the outcomes will be similar with this conflict. The conditions affecting US military effectiveness are not unique but rather are true of war generally today.

Three days before the US-Israel attack on Iran, FT journalist Janen Ganesh wrote of the “increasing ineffectiveness of war” today. This state of affairs has been true for decades but with the Russian invasion of Ukraine the condition has become patent.

Despite a global military superpower mounting a full scale invasion, its efforts to conquer another country have obviously failed. There are many factors leading to this result but a significant contributor has been the development of new technologies, particularly land and sea drones. These weapons have created a new means of asymmetric warfare, which enable a far weaker adversary to repel much larger forces.

Asymmetric warfare has been a staple of post-World War II conflict. It was a critical aspect of the US losses in Vietnam, Iraq, and Afghanistan.

A main lesson is that brute military power can deliver lots of destruction but is insufficient to conquer territory. This contention is true even as military power has become more precise in targeting critical infrastructure and arms manufacturing. Similarly, it holds despite the willingness of hate-filled sadists to inflict unspeakable levels of violence on civilians. Given that even those tactics fail, they can only be of gratuitous value.

The ineffectiveness of military power today won’t stop populist or authoritarian leaders from ginning up nationalist sentiment to wage wars and likewise declare victory even when they utterly fail. But it does mean that the practical geopolitical utility of war is greatly diminished.

Yet the conflict in Iran has exposed not only the limited efficacy of military hardware but the Achilles’ heel of the high-tech defense industry, that is, its dependence on raw materials from overseas sources. A further irony to the story of today’s defense sector—something completely lost to the isolationist nationalists—is its utter dependence on foreign suppliers.

More interdependent than ever

If Trump’s tariffs and the America first rhetoric of recent years have shaken assumptions that economic globalization would continue inexorably, the first month of the Iran war has shown its continued vitality. We live in a highly interdependent world, which is both a product and reflection of a new form of society that emerged during the post-Cold War period.

The logic and demands of the myriad interlocking systems that constitute global and national societies today make it completely atavistic to think that countries can extricate themselves from these interconnections. The nature of societies and global markets have changed profoundly.

Social theorists have understood these phenomena for decades. In the mid-1990s Manuel Castells’ captured the changed nature of governance, economic, and social relations from hierarchal to networked organizational models. In her incisive and nuanced work on globalization, Saskia Sassen showed how both cities and nation states have become the locus of transnational configurations of political, legal, and economic power. Niklas Luhmann captured the tightly engineered nature of the social world through processes so seamless and fluid that they appear to function automatically, even outside of human control.

It seems that everywhere one turns when examining the Iran war another strand of our interdependence is exposed. The most obvious is, of course, oil. The implications for business and consumers from North America to East Asia have been well documented. Countries have varying degrees of strategic reserves, but as prices at the pump illustrate, for the most part the reality is that the system works on just in time production.

It’s well recognised that oil isn’t just about automobiles or factories. It’s about plastics, fertilizer, chips, and many other products. All of these depend on steady supplies of raw materials.

The fertilizer markets, which are essential to global food production, also function on a just in time model. In the coming weeks, disruptions in the supply of urea and ammonia will affect this year’s growing season for everything from wheat to soy beans. Shortages in these commodities will in turn affect meat production.

Midstream in AI fever we see the utter dependence of the hyperscalers on oil to power massive data centers. Chip manufacturers depend on helium which is a byproduct of liquified natural gas production, much of which comes from Qatar. Bromine used in chip formation and circuit inspection equipment is also under strain.

At this point, claims about the dematerialization of our economies appear rather overstated as evidence of our utter dependence on physical minerals has become manifest.

Just in time production is evident in military procurement too. The components for the high tech missiles used by the US require germanium among other products. Sulphur shortages will affect extraction of critical minerals like copper and cobalt used in microprocessors, jet engines, and drone batteries. Likewise, radar systems demand rare earth minerals. Putting aside the time required to manufacture these weapons, obtaining the raw materials won’t be instantaneous.

The Gulf airport hubs that have become essential means of connecting everyone from international executives to holidaymakers to migratory workers rest on some basic levels of security as well as oil. The knock on effects of travel disruption affect everything from medical tourism in South East Asia to London sushi restaurants purveying tuna from Tokyo’s Tsukiyi market.

These disruptions to the global economy affect many people not only as consumers but also as investors. Both pension funds and individual retirees have most of their assets in financial markets. Downturns in company profits due to supply chain disruptions will cause significant economic pain. Many consumers will be hit with a double whammy of higher fuel costs and reduced value of savings and income.

But as I’ve discussed in earlier posts, though conveniently ignored by free market ideologues, a major part of today’s global economy involves state investors. Sovereign wealth funds and state owned enterprises control more than $150 trillion in financial assets. Huge shares of sovereign investments are held in listed and private companies around the globe. The ripple effects of the disruptions will affect underlying asset valuations. There’s been some reporting about how the Gulf-based sovereign investors may start to rethink their investments, but it’s not clear what options they have.

The reality is that we cannot uproot these interconnected systems without fundamentally changing our societies and economies. More plausible than replacing these systems, the manifold actors and interests involved in these interlocking production and consumption networks will seek ways around these disruptions. We can expect many ugly episodes in the coming period, but approaches to ensuring greater continuity and stability will be forthcoming.

Rational evidence-based governance will be essential

The complex interdependent global society that we now inhabit cannot be steered or managed through feckless policies, performative stunts, or bullshit. Trump’s America is not a model for governing the US let alone the world.

With the decimation of competence and evidence-based policy that has upended the US regulatory state, there are only three principal plausible illustrations for how states can adjust and steer through these challenging societal conditions. These are China, the European Union, and the set of so-called middle tier powers Mark Carney referenced at Davos.

None of these systems are perfect by any means and they differ enormously in their levels of political freedom, openness, and rights protections, yet they share common attributes that are fundamental to managing the complexity of our world. That is, the ability to develop rational policy with a degree of long term perspective, which is not completely dominated by ideology or self-dealing.

As noted in my last piece, with the adoption of China’s latest five year plan, it has sought to continue advancing development and increasing its political and economic power for the coming decades. China’s involvement in international policy entails significant amounts of deliberation and consensus building within its vast bureaucracies.

The European Union has a complex system of governance, which is fundamentally premised on a high degree of technical and regulatory capacity. Its processes for the development of norms and standards that apply across its 27 countries, require incredible amounts of research and deliberation.

Although derided by Scott Bessent at Davos, intelligent policy does indeed require “working groups”. As Anu Bradford articulated well, the “Brussels effect” involves the ability of the EU to develop regulatory norms that establish global standards on everything from internet privacy to electronic wastes.

Likewise, the functional middle-tier states reflect levels of rationality and sensibility that will enable to them to manage the challenges of global interdependence. Aside from many EU states which also fall into this category, Canada, Australia, New Zealand, and Japan stand out. South Africa, Brazil and some of the Gulf States also show capacity to play important constructive roles.

The EU, Chinese, and middle-tier governance models reflect the type of disciplined policy making and judgment needed to work within today’s complex and rapidly changing social and economic realities.

Future US administrations could reverse course and rebuild technical capacity and reclaim a level of credibility in global policymaking, but it is evident that the needed changes are no longer merely technical but deeply cultural as well. It could take many years for the US to restore a degree of sane and sensible governance.

Towards new forms of global cooperation

The ability of states to create disruption through raw military power, capricious economic coercion, and political grandstanding will no doubt continue, however, these activities will be sideshows to the real challenges the world faces. The levels of interdependence in which all states are participants will inherently require significant levels of cooperation.

Those arguing that the United Nations is now dead because of the current disruptions seem to forget that the first 35 years of its existence were marked by intense East-West rivalry, the Suez Crisis, the rise of the Non-aligned Movement and demands for a New International Economic Order, among other conflicts.

I don’t want to be sanguine about the urgency of today’s threats, but it is the nature of institutions to go through periods of stress verging on disintegration followed by renewals and reforms. Aside from the quixotic decisions of countries like Argentina and US to withdraw from the World Health Organization, virtually all states still see the value of engaging in international institutions.

Outlines of the shape of global cooperation have started to take shape this week. Although the world is poised to endure even greater Trumpian chaos in the coming months if not years, the importance of these nascent governance models should not be underestimated. If it seems premature to imagine the future institutional architecture, recall that preparations for the Dumbarton Oaks conference leading to the development of the UN were underway by December 1943, well before VE day.

A potential alliance of the 12-member Comprehensive Progressive Agreement for a Transpacific Partnership (CPTPP) and the EU trade blocs shows the forms this cooperation could take. This model is still taking shape and remains unproven. One use of such an arrangement would be supplement the WTO in the event that reform efforts currently underway there fail to materialize.

The beginnings of the beginning of an alternative

Regardless of the outcomes of the CPTPP-EU discussions, we should expect further similar innovations. These institutional forms are compatible with the continuation of the existing multilateral system but could also allow faster progress and deeper cooperation than might be possible in broader multilateral forums.

While the conflicts underway certainly belie optimism, neither are conditions hopeless. Many of the tools for reconstituting global cooperation may already be at hand. Amid the current uncertainty, it is important not to lose sight of the potential for a more sustainable and secure world.

“His opportunistic grabs for power whenever he sees weakness are dangerous. America needs a strategy in Iran, just as it needs one in the world.” The Economist, 5 March 2026.

Aside from the gross immorality and patent illegality of the war against Iran, the Trump Administration’s complete lack of strategy also deserves attention as an illustration of its flawed approach to governance.

The strategic void surrounding this conflict was brilliantly illustrated in The Financial Times just days after the US attack. A front page story “Donald Trump struggles to explain why he launched another Middle Eastern war” on 3 March began noting that “regime change, a campaign to stop Tehran’s ballistic missile programme, help for protesters, and retribution for the deaths of American soldiers” had all been cited as justifications for starting the campaign.

The article then related that Secretary of State Rubio had just added to the list of rationales that “the US knew that Israel was poised to attack Iran, which would retaliate against the US”, so therefore it struck first. Yet this same rationale had to be reversed within a day as it gave the impression that the Israelis were driving US policy.

Since then the narrative has continued to bounce around. One minute an official states that the US will do “whatever it takes” and start “hitting them hard”, and the next moment (if not simultaneously) we hear that the conflict will be “over soon” and “the war is very complete, pretty much”.

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If you don’t know where you’re going….

All of this brings to mind American baseball icon Yogi Berra’s quip that “you’ve got to be very careful if you don’t know where you are going, because you might not get there.”

Following more than a year of chaotic, undisciplined, and self-defeating activity, a positive unintended consequence of the attack on Iran is to vindicate strategy’s importance. Long dismissed as passé by the move-fast-and-break-things crowd, strategic planning works.

China’s unparalleled economic transformation, Apple’s commitment to product quality generating decades of immense profitability, and the US efforts to put a man on the moon were all products of strong strategic thinking.

Of course, in the best of times, even sensible strategies may fail. But in the complete absence of strategy, the results can be catastrophic.

Plans are worthless but planning is indispensable

Strategy is not magic. Strategizing works because it involves activities in short supply today: reflection and deliberation. US President Dwight Eisenhower—an incredibly experienced strategist by any measure—acknowledged this point when he remarked that “plans are worthless, but planning is everything.”

I’ve written before here that an under-appreciated aspect of the entire Trump agenda is its highly ideological nature. Claims that government is the problem, that markets can solve everything, that the US has a manifest destiny to dominate the world economically and politically are central to their hubris. These distorted views are exactly the types of errors that strategic processes can help us avoid.

Remarking on China’s recent adoption of its fifteenth, five-year plan, Adam Tooze captured the degree to which the US under Trump has become a true outlier—not in the good sense. While the US is engaged in an unjust war without any clear endgame or correspondence to its national interests, Tooze argued that China’s strategy was of equal geopolitical significance as it will likely solidify its place as the dominant power in the twenty-first century.

In contrast, US citizens must make due with streams of patriotic platitudes about having the “greatest fighting force the world has ever seen” or “unleashing an economic golden age”—claims which are devoid of substance not to mention any follow through.

Chaos will not be the twenty-first century order

On waking yesterday I had to laugh at the news that oil traders were betting on prices declining given Trump’s remarks that the war would be done soon and/or that the US would ensure safe passage of tankers through the Strait of Hormuz. Notwithstanding every misstatement and equivocation we have heard from this government, this time we can surely take them for their word! (Today’s FT conveys the reality a bit more subtly with the headline “oil price swings as traders parse mixed messages on US naval escorts.”)

I daresay that this is no way for the world to function. The idea that organizations let alone major countries can be governed only on the basis of the ever-shifting hazy ideas and instincts of one real estate developer is ludicrous.

Given the amount of change underway in the global economy, artificial intelligence, the nature of production, demographics, geopolitics, technologies for armed conflict, and climate change, strategy will prove more important, not less, in the coming decades.

Figuring out what happened and what will come next

Following Trump, America will be like a drunk coming to in the morning trying to piece together what happened the night before.

But the evidence is already staring us in the face.

As long as ideology drives American policy and politics, there is little chance the US can course correct before many of the changes underway permanently affect its standing.

The US may not be able to relearn the art of strategy, but other countries haven’t forgotten. For them, a desire for some degree of order and sense will shape their plans. It’s a safe bet that the strategies that emerge will seek to advance approaches to governance and legality that provide more stability and, possibly, a degree of justice.

These views constitute wishful thinking completely unsupported by what we know about how rule of law and democracy arise. Central to this understanding is the distinction between exogenous and endogenous legal change.

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Legal change is an internal affair

Domestic legal and institutional change can be driven by either endogenous or exogenous sources. Both causal factors play greater roles depending upon circumstances. Each may be more or less efficacious in moving countries forward in terms of rule of law. Given the degree of interconnectedness in today’s world, external developments will certainly affect the trajectory of endogenous change but this is a matter of degree and the basic distinction is still useful.

Endogenous change involves forces that are primarily domestic in origin. Diverse actors and reasons can drive change within a country. Concerned citizens, organized civil society, informal civic associations, faith communities, universities, professional groups, voters, businesses, industrial federations, media, and political and economic elites all contribute to framing issues and advocating for change.

These diverse domestic actors respond to societal conditions whether based on their own interests or broader concerns. Some work together and some in opposition to one another. Out of the rough and tumble of domestic debates and deliberation, movements gain sway, coalitions coalesce, and agendas for change gain momentum.

Other sources of endogenous change include governments themselves. While we often think of governments as a source of rule of law deficiencies, at times public sector bodies may decide to reform themselves. Politicians may campaign promising institutional reform. Bureacrats and elected officials may initiate change based on perceived needs of society. Courts may bring about change by upholding constitutional norms or individual rights. Often these changes take place over decades, which may be frustrating to those fighting for needed reforms, but these long term processes may also help ensure the legitimacy and staying power of those changes once they occur.

In other cases, political violence may presage institutional restructuring. Following periods of conflict due to civil wars or mass violence, peace building and transitional justice processes may galvanize political will and cultivate social solidarity for rebuilding governance institutions in ways conducive to the rule of law.

Outside forces matter but won’t drive or steer the process

Exogenous change arises through forces outide countries. In today’s world, states face enormous forces that bear on their governance and legal systems. So strong are these forces that some scholars have argued that states have declined in importance and are weak in the face of global governance and economic forces.

Relevant examples include World Trade Organization restrictions on domestic regulation protecting the environment or health to the influence of United Nations human rights norms and review processes. Such influences are thought to eclipse domestic governments’ capacities to defend their legal and governance institutions from outside pressures.

Likewise, markets police the activity of countries’ domestic policies and governance as when bond markets react negatively to loose fiscal policies. The coercive power of these exogenous forces varies between issue areas and the relative power of states and international institutions, yet those influences largely do not force states to do things they oppose.

At the extreme, military power is the most coercive driver of exogenous legal change. Notable examples include the imposition of new constitutions and governments by the Allies following the German and Japanese losses in World War II. Similarly, after conquering most of Western Europe in the nineteenth century, Napoleon imposed the Civil Code in France, Italy, Belgium, the Netherlands, and parts of Germany and Poland. Those legal changes took hold and in large part persist today.

The deep roots of social and political institutions

When confronting autocratic and rights-violating regimes, it is thus tempting to think that endogenous processes can be sidestepped by simply dispatching the existing governments. Yet history demonstrates that the above examples are the exception rather than the norm. More often than not, exogenous forces are limited in their power to supplant existing social and economic structures.

These limitations were illustrated in the dramatic reversals of the massive investments in governance and rule of law reforms in Afghanistan following the US-led campaign to oust the Taliban in 2002. Similarly, although less dramatic, Iraq has largely scrapped the reforms imposed by the US and its allies following the removal of Saddam Hussein. The complete gutting of state capacity following the debathification process has only aggravated the situation.

It is thus hardly surprising that following Maduro’s removal, the power of the United Socialist Party of Venezuela not only remained intact but consolidated. Belief that bombing Iran will depose its entrenched theocratic regime is equally fanciful.

Realizing the rule of law is always a long slog

The resistence of countries to exogenous forces of legal and institutional change does not mean we should abandon commitment to international law, human rights, or rule of law. Rather it must be recognized that for those influences to ramify and gain social and political support with a degree of legitimacy, there is no substitute for endogenous change processes.

Unlike physics, social science does not generate rules that apply consistently across the universe. Yet we do gain some insights that support modest generalizations. There is a lot we don’t know about the emergence of rule of law in society but we have also learned a lot.

When political leaders start talking about “surgical strikes” and “decapitating autocrats”, don’t buy it. In these situations the overwhelming odds are that justice and the rule of law will not prevail and the ultimate victors will be the original oppressors.

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History and legal measures against enforced disappearance

The notion of enforced disappearance gained recognition through the horrific practices seen in Latin America notably Argentina and Chile under the Peron and Pinochet dictatorships. Estimates are that hundreds of thousands of people in Latin America have been abducted by governments or groups supporting the regimes and simply vanished without a trace. Authorities have denied any knowledge of the victims’ whereabouts, leaving families without any certainty about their loved ones’ fates. The vast majority of those abducted were killed and their remains hidden or destroyed. While extrajudicial killings are considered unlawful under human rights law, the practice of enforced disappearance is noteworthy for the terror it inflicts.

International law defines enforced disappearance in terms of three elements. These include, first, a deprivation of liberty, second, carried out by agents of the state or persons acting with acquiescence of the state, and third, a refusal to acknowledge the deprivation of liberty or concealment of the fate or location of the person. In 1992, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance.

Following the Declaration the International Convention for the Protection of All Persons from Enforced Disappearance was adopted by the UN General Assembly in 2006 and came into force only in 2010. Today 77 out of 193 UN member states have ratified the treaty.

The Organization of American States (OAS) has enacted a substantially similar convention which was adopted by 23 state parties. The US is a party to neither treaty.

Despite the still limited numbers of parties to these treaties, it is widely agreed among international lawyers and judges that enforced disappearance violates a jus cogens norm. Although in many areas of international law consent is required to obligate states, the concept of jus cogens pertains to certain norms that are considered binding on all states as a matter of customary international law. Consent is thus not required.

Examples of jus cogens norms include genocide, slavery, crimes against humanity, war crimes, torture, nonrefoulment (return of asylum seekers to country from which they were fleeing persecution), and apartheid.

The fact that enforced disappearances often involve killings is only part of the crime. Another crucial aspect entailed by governments’ unwillingness to acknowledge the disappearances is their implicit violation of the rule of law. Without any knowledge of a persons’ whereabouts or circumstances leading to their disappearance, it is extremely difficult if not impossible to seek justice in the courts.

The legal standard for determining whether an enforced disappearance has occurred has no minimum time requirement. Even short periods can suffice to meet the definition.

US border policies as enforced disappearance

A recent article by Diego Leal and Natalie Cadwalader examines US border management practices from the standpoint enforced disappearances. They note that while the US has not ratified the relevant treaties, the State Department has recognized the concept and the three elements that constitute the offense.

There is growing recognition that current US immigration policies are objectionable as enforced disappearances. This recognition predated the Trump Administration and in response the Biden Administration attempted to address this issue, albeit imperfectly, by creating an online system to enable location of migrants in detention.

The Trump Administration’s tactics have made these concerns even more dire. Rendering migrants to third countries is the most glaring example. In March 2025, the Trump administration sent 252 Venezuelan and 36 Salvadoran migrants to the high-security Terrorism Confinement Center (CECOT). According to Human Rights First, once in Immigration and Customs Enforcement (ICE) custody, these persons vanished from the locator system. In practice, the speed and secrecy of the process made it impossible for detainees to contest the deportation. Indeed, some persons rendered were awaiting immigration court hearings scheduled just days after they were whisked out of the US.

The fact that other countries may be de facto carrying out the enforced disappearance does not, under the definition noted above, mitigate responsibility of the US for the result.

The US government has concealed the location of these persons and families and lawyers for those persons identified have been unable to communicate with them. The government claims that these persons were gang members but “did not provide any notice of their designation as gang members, present any evidence supporting the designation, or give the individuals an opportunity to challenge the designation before a judge before rendering them to the CECOT prison.”

This type of treatment has been applied not only to alleged gang members but to migrants claiming asylum. Persons coming from Afghanistan, China, Ghana, Iran, Russia, Türkiye, and Uzbekistan have been rendered to Costa Rica and Panama.

“Immigrants and asylum seekers are regularly held incommunicado, that is untraceable for those searching for them or able to make contact themselves with the outside world….[and] there is no functioning mechanism for the public to track where in Customs and Border Protection (CBP) custody a person is detained”, Human Rights First reports.

In 2024, the United Nations Working Group on Enforced and Involuntary Disappearances has issued General Allegations that the US government was disappearing migrants in CBP custody and interdicted by Coast Guard. Another practice the WG identified was expelling third-country migrants to Mexico where they were subject to enforced disappearance.

Thinking about our duties to migrants

The US is not the only country violating norms against enforced disappearance. Similar practices have been observed among other OECD countries. US conduct is illustrative of the modalities and the harms these practices cause.

Enforced disappearances deny people the protection of the rule of law. The basis upon which individuals have been expelled from the US in the first place often violates standards of transparency and due process. By rendering people to regimes to which they have no legal connection and that lack reasonable rule of law and human rights practices, these persons are completely denied rule of law protections. The fact that many of these people were fleeing oppressive rights-abusing governments in the first place only makes the offence more grave.

Enforced disappearance is among the most extreme form of rule of law violations associated with migration. A larger question raised by today’s anti-immigration movements in many countries concerns what moral obligations societies owe to migrants. These are difficult questions that challenge assumed wisdom and preconceptions. I’ll explore this topic in my next newsletter.

While a useful practical technique, carve outs can also be used to normatively objectionable ends. In fact, their role in many national legal systems eviscerates those countries’ claims to uphold the rule of law. As I will discuss, across a wide range of critical issues, large populations are carved out from the rule of law. While Trump’s presidency and authoritarians in other countries bring these issues to the fore, these defects predate him and go to the heart of many countries’ entire justice sectors. Viewed through this lens, the rule of law in many countries is a chimera.

What are rule of law carve outs?

Carve outs from the rule of law allow dominant interests to effectively game the legal system by delimiting rule of law’s scope to a compressed playing field. So long as events on the pitch comport with received models of the rule of law, we can take comfort that the rule of law prevails. As Rights, Regulation, Rule of Law readers will recall from earlier podcasts and writing here, these conventionally recognized rule of law characteristics have chiefly been framed in formal and procedural terms. When understood in terms of the accepted playing field, the US and other OECD countries can claim—and rule of law indicators and indices reliably show—that they uphold the rule of law.

The challenge for rebuilding the rule of law once today’s global wave of populist authoritarianism recedes, is not about merely returning to some fictive conditions under which the rule of law was largely upheld but instead, to build true rule of law from the ground up. That challenge makes the debated conceptions of rule of law framed as procedural and formal regularity, completely unequal to the tasks ahead. Creating truly inclusive rule of law will necessitate movements for comprehensive social and political justice.

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Unpacking the rule of law ideal

In a forthcoming series of posts, I will explore these rule of law carve outs. Rather than minor concerns, the deficiencies entailed by these exceptions shatter the illusion that many countries uphold the rule of law. While the power of populist-authoritarians in advanced Western democracies have made all these flaws more acute, they are hardly new phenomena. Because carve outs define the extent to which the rule of law will apply in society as reinforced by factors including culture, constitutional norms, economics, and nationalism, reversing their influence will take considerable effort.

Among the topics I will explore in the coming weeks are immigration, the use of jurisdictional games, exercises of emergency powers, national security law overreach, civil access to justice, minority groups’ overrepresentation in the criminal justice system, dispossession and violence towards indigenous peoples, and tolerated organized crime and corruption. Together these shortcomings so permeate countries’ governance, social structures, and economies that they are fundamental rather than incidental to rule of law conditions. All of these chronic phenomena are manifest and often aggravated by today’s acute rule of law crisis.

Migrants and refugees

I’ll begin with immigration as it’s very much in the news and represents a key rule of law carve out. In international law, the notion of state sovereignty confers power on states to determine citizenship and establish conditions for immigration. Yet as I will explore, in all OECD countries, conditions for immigration involve significant denials of the rule of law to millions. The conceit of immigration law is that citizenship confers greater—or at the extreme any—rights. These conditions leave many people without any access to the rule of law.

But as philosopher Seyla Benhabib has argued, the complete preclusion of migrants’ ability to exercise their rights is untenable as a matter of justice and international human rights law. Defining classes of persons as outside the political community denies them the right to have rights in Hannah Arendt’s phrasing. Completely circumventing basic human rights protections for swaths of the global population constitutes a large carve out, and thus a good place to start this newsletter series. The US offers a jarring illustration of how rule of law is bypassed as courts recognize the so-called plenary (i.e., nearly unfettered) authority of the President over immigration, now shown to be a recent jurisprudential contrivance.

Jurisdictional games

A related but distinct topic from immigration is the use of jurisdictional games. US treatment of “enemy noncombatants” in Guantanamo Bay, Cuba epitomizes these types of manoeuvres. Similar practices have been followed by Australia with its migrant offshore processing centers where refugees arriving by boats have been detained. Likewise, European arrangements with North African countries and Türkiye to keep migrants from entering the EU, is a tidy way to preclude asylum seekers’ assertion of rights.

In the commercial sphere, globally 7000 special economic zones and similar reduced regulation areas enable states to carve out chunks of territory with attenuated or even nonexistent rule of law. China famously created many such zones but they have proliferated internationally over three decades. Within zones, the ability of affected people to challenge conduct, including land grabs, labor abuses, sexual offences, environmental crimes, and violence are often overridden by agreements between governments and businesses operating in the zones.

Emergency powers

I will also explore the use of emergency powers by governments to supplant the rule of law completely. States of emergency are often declared in relation to natural disasters, conflicts, and civil disturbances among other reasons. Constitutions generally recognize the potential need for the executive to declare states of emergency thereby suspending normal application of the law.

To those holding executive power, the idea of unlimited authority is only too alluring. Indeed, emergency powers can be abused in a variety of ways. Legislation to fix this problem in the US stalled in Congress last year and has been recently reintroduced, though Trump seems intent on solidifying the very types of overreach the bill would prevent.

Indigenous peoples

Another important rule of law deficiency is violent, predatory, and exclusionary behavior towards indigenous people. Although the historical bases of these practices are sometimes if only begrudgingly recognised in countries with settler-colonial pasts, indigenous groups are regularly denied rule of law protections by many statess today. This observation also applies to countries seemingly progressive on human rights like Canada or Scandinavia.

One aspect of the denial of rule of law to indigenous people is through explicit constitutional or other designations of groups as other than the majority ethnicity, race, or religion thereby depriving them of citizenship. Similarly, constitutional and other laws may define land ownership in ways that extend protections within certain areas or limit them in certain ways to the disadvantage of indigenous peoples.

Governments regularly deny due process to indigenous peoples by circumventing relevant laws and breaching agreements with them. A current example I will examine is the Carney Government’s potential legal manoeuvre to abrogate the rights of Canadian indigenous peoples wholesale by asserting the power to override constitutional protections for them in the “national interest” following Trump’s tariffs. Executive overreach, national security, denial of access to justice and due process, and ongoing structural conditions that perpetuate an underclass status combine to exclude indigenous peoples from dominant political communities in many countries.

National security

Matters of national security are another matter insulated from rule of law protections. While there are considerable differences between legal systems, national security laws have some similarities. These include dramatic reductions in rule of law protections for matters involving intelligence, military affairs, and political topics deemed relevant to security threats. Although broad powers over domestic security are problematic rule of law carve outs, the tendency of the executive branch to overreach and expand its powers beyond those conferred or needed for the exigency aggravates the impact of this rule of law deviation.

Criminal justice systems

Globally members of disfavoured groups face arrest and imprisonment at rates disproportionate to dominant majorities. This fact is no less true across the OECD. Here we can see how the truncated definition of the rule of law playing field is so intellectually dishonest. Ignored are historical backstories about how disfavoured groups came to hold such status, dependence on potentially less effective legal aid counsel, endemic bias among police, prosecutors, and judges, and the fact that minorities are convicted at greater rates while receiving harsher sentences than members of the dominant classes charged with identical crimes.

Yet by defining rule of law in terms of the accepted playing field, developed countries can pride themselves on the integrity of the legal process. Because bribery of judges is relatively rare, decisions accurately follow statutes, some free legal defense provided, and the laws having been publicly promulgated, dominant cultures can solemnly profess that the rule of law is upheld.

Organized crime facilitation and impunity

Government enabling of organized crime is a further rule of law deficiency. Often the reasons involve collusion or corruption between officials and the criminal underworld. Examples include tolerance of offshore financial centers. Other examples are government regulators ignoring obvious red flags around large property sales or other transactions and the abuse of professional secrecy by accountancies and law firms. As I will discuss, the looting of Bangladesh by the former Prime Minister and her family invoved the acquisition of as many as 300 properties in the UK to launder the funds they embezzled.

Another example are failures of governments to develop adequate anti-money laundering controls and protections for cryptocurrency before liberalizing markets for the assets. Rather than a minor evil, these activities constitute grave societal threats. Estimates are that organized crime represents between 3 and 7 per cent of the global economy. By creating space for organized crime to operate, governments effectively insulate the black economy from the narrow rule of law playing field. In a perverse twist, it is the reliability of the official, accepted rule of law playing field in these jurisdictions with protections for contracts, trusts, and shell companies that enable this illicit finance.

It’s time to reimagine the rule of law

By carving out the foregoing matters from the basic conception of rule of law, countries can maintain the illusion that they largely observe the standard. Excluding matters from legal protection wholesale precludes comparisons to countries considered rule of law violators. While virtues traditionally associated with the notion of rule of law are no doubt important, they are hardly the whole story. If we are going to get serious about the rule of law we must bring these foundational elements into the discussion.

As attention begins to turn towards reversing the Trump Administration’s assault on the US legal system, we need to think about practical steps forward. Americans have allowed these types of flaws to be sidestepped for too long. In this, the US is not alone and has sometimes served as a model justifying similar rule of law carve outs by other countries. A key part of the agenda must be overcoming efforts to sidestep the rule of law and creating more inclusive systems of justice globally. In the coming series, I’ll try to sketch some ways to think about doing so.

Grounds for Growth

As I’ve discussed in the past, one thing I find persuasive as an explanation for how capitalist development has occurred is that the creation of reasonably strong institutional frameworks were a significant enabling factor. Different scholars view different aspects of what laws are needed to support this process, however, there is widespread agreement on the central role of law and institutions.

In the mid-2000s, Rafael La Porta and various collaborators marshalled significant data to support the argument that the quality of law and institutions could explain cross-national divergences in economic development prospects. While much attention (particularly in the francophone world) was devoted to challenging their claim that common law countries outperformed civil law jurisdictions, the root argument on the importance of legal and institutional protections was not. According to La Porta et al., the quality of corporate governance—supported by legal frameworks and strong judiciaries—is crucial for economic performance.

Other scholars, notably the Legal Institutionalist group of economists and lawyers, have extended and refined that account. Rather than imagining law and institutions as bolstering the market—imagined by Friedrich Hayek as spontaneously emerging through individual bargaining—the Legal Institutionalists show how law and institutions are constitutive of the economic system. Without law there is simply no market as we know it.

Research in comparative corporate law and governance complements that work, by emphasizing the ways in which reliable legal frameworks shape and in turn are shaped by investment and business activity. Law and institutions combine with economic activity to create positive reinforcing cycles that build on each other.

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Reinforcing measures for corporate governance

The legal framework for business has grown alongside the economy. The legal and regulatory structures for corporate governance extend far beyond mere company law statutes. For corporate law, as in other fields, regulatory accoutrements complement and reinforce elements of the primary field.

An excellent example of this type of addition is the development of the securities laws. Designed to protect investors, the securities laws intersect and often reinforce basic principles of corporate law such as the avoidance of conflicts of interest for managers and boards of directors.

Given the enormous growth in the American economy since the main US securities laws were enacted in 1933 and 1934 to remedy defects behind the 1929 stock market crash, it is difficult to determine their precise influence on the market.

Nevertheless, it seems reasonable to believe that establishing a strong judiciary competent to hear complex corporate and commercial law disputes, creating reliable accounting rules reinforced by regulation, mandating disclosure of all material risks by public securities issuers, and constraining opportunistic behavior by managers and board members have contributed positively to the remarkable growth of the US stock market over more than 90 years.

It is in this regard, that the administration’s policy pronouncements in the past few weeks are shocking for their brazen repudiation of the foundations for investment.

Tilting at windmills, again

At the top of the list is the announcement of the Securities and Exchange Commission (SEC) chair that the Commission would take a much less aggressive posture when it comes to policing the securities laws. This decision coming from a supposedly law and order administration that recently opened the floodgates to illicit money by reducing crypto regulation is hard to fathom.

The efforts to erode the quality of corporate regulation came with the announcement of plans to reduce the basis for shareholder suits for securities fraud. By allowing public companies to require shareholders to submit fraud claims to arbitration, the SEC is proposing to curtail the ability of shareholders to seek compensation when they lose money due to fraudulent misstatements in disclosure documents by management, boards, lawyers or bankers.

As anyone who has participated in preparing corporate disclosure documents can attest, fear of lawsuits drives rigorous efforts to ensuring the accuracy of those disclosures. The impact of this decision coupled with the reduced enforcement posture of the Commission will be massive.

This announcement was complemented by the President’s plans to reduce the frequency of corporate reports under the 1934 Securities Exchange Act from quarterly to semiannually. This decision was premised on the burden that quarterly reporting purportedly places on management. As a former securities lawyer, I always thought these costs were the price for accessing the capital markets and ensuring their integrity but apparently no longer.

Next, was the SEC chairman’s announcement that he is scrutinizing international accounting standards for their inclusion of climate risk as a reporting requirement. According to the ideologue now running the Commission, accounting for climate change risk is somehow improper and companies following International Financial Reporting Standards should be denied access to US markets.

On this front, while the US was alone among UN members in skipping last week’s climate summit, it is also out of step with business. If you want to get a sense of what the smart money really thinks about climate change, just look at the insurance industry.

These developments are only a portion of the economic self-sabotage the Trump Administration seems intent on inflicting. Though it is difficult to say which measures will have the biggest effects on reducing trust in the US as an investment destination, taken together there is little doubt they will undermine investor confidence over time.

The health of businesses in the US and technology-fueled growth may be counterveiling factors, yet with the tariffs, uncertainty of interest rates due to politicization of the Fed, labor market shortages due to punitive immigration policies, and a feckless and eccentric approach to economic policy generally, company growth will likely be affected too. There is evidence that investors are already positioning for the effect of these various measures to kick in.

Curtailing the rot

Although securities laws may seem esoteric and technical, these changes will contribute to degrading the basis for wealth creation in the US. This is especially the case as the neoliberal turn away from defined benefit pensions to defined contribution plans (e.g. 401k) has turned many more middle class Americans into shareholders.

At a time when the US stock market outperformed global markets by nearly three times in the past decade, the professed motive to reduce regulatory burdens on business of these securities law rollbacks is not credible. Opening doors for self-dealing and opportunism are more obvious explanations.

Reductions in corporate governance standards will have longer-term consequences for a large share of the public. Reversing these changes before it is too late will require making the case to voters that the underlying motives and moves will hurt their economic well being.

In addressing these regressive attacks, it is helpful to put them in historical and legal context. Over the past 50 years, significant improvements in women’s rights and gender justice protections have been achieved in many countries as a result of organised and sustained campaigns by women’s organizations. These results overwhelmingly show that positive change is possible, however, ongoing multiprong attacks by conservative social actors and authoritarians are imperilling those established rights.

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Accomplishments of the global women’s movement

A foundational accomplishment of the women’s rights movement was adoption of the Convention on the Elimination of All forms of Discrimination Against Women or CEDAW. This international agreement came into force in 1981 and has been highly influential on law and policy in many of its 189 member countries. (NB: the US is not a member.) CEDAW expanded upon equality provisions of the International Covenant on Civil and Political Rights and UN Declaration on Human Rights, while addressing many critical issues including access to education, anti-discrimination, and family law.

CEDAW was achieved as a result of efforts by global and national women’s rights movements. From the 1970s through the 1990s, women’s rights organizations were created in many countries. Although CEDAW benefitted from support of women’s organisations, it also spurred the creation of many more groups.

The statistics are remarkable. Before the 1970s, there were few countries with autonomous women’s organizations. Since then, virtually every country (except Cuba) has seen women’s organizations created.

A high point for mobilizing women’s organizations was the UN’s Beijing Women’s conference in 1995 and resulting Programme of Action. In the following 30 years, transnational women’s organizations have grown in size and extent of their cooperation.

Women have begun to make tremendous headway in politics as well. A key feature of this progress has been due to the adoption of quotas on representation in parliament. In Africa, for instance, 27 per cent of all parliamentary seats are now held by women.

In terms of specific rights, many major reforms have been achieved. Discrimination in employment—likewise sexual harassment—are now outlawed in many countries. Child marriage is often now prohibited and laws against domestic violence have been widely adopted.

Progress has not been uniform on all fronts. Issues that affect (real or purported) long-standing cultural or religious norms have been hard-fought and show slower progress than those pertaining to general equality demands.

To illustrate, women’s equal ownership of marital property is often a function of family law, which, before the assumption of power on such matters by the state, was overseen by religious or traditional (clan or tribal) authorities. Changing those laws may be perceived by those traditional leaders or men in general as threatening. In contrast, women’s rights to employment or for paid child care generally do not face the same degree of opposition.

Attacks on women’s organizations and rights today

The critical role of autonomous women’s organizations has not gone unnoticed in authoritarian and right-wing regimes. Along with attacks on civil society organizations generally—typically based on the pretext of their receipt of funds from foreign governments or philanthropies—women’s organizations have been marginalised or shut down.

A June 2025 report by Saskia Brechenmacher of the Carnegie Endowment for International Peace underscores the gravity of the situation. She finds that across a range of gender equality measures, significant reversals have occurred. In many cases, the moves are an outgrowth of illiberal politics, which regard women’s and LGBTQ rights as products of dangerous foreign influences that undermine traditional gender roles and family structures.

The attacks seek to reverse laws, policies, and rights protections for gender equality. Among the targets of these campaigns have been comprehensive sexuality education, LGBTQ rights, and sexual and reproductive health care. While these topics are well-worn preoccupations for conservative culture warriors, a shocking turn has been efforts to reverse laws preventing violence against women.

Rollbacks of laws preventing gender-based violence have occurred in Russia and Türkiye, while other countries have considered the matter. Russia has decriminalised some forms of domestic violence with the backing of the Russian Orthodox Church, for instance. Similarly, despite the Council of Europe’s anti-violence against women convention being named for Istanbul where it was negotiated, Türkiye pulled out of the agreement in 2021 with President Erdogan arguing it conflicted with family values.

Poland’s former right-wing government also took steps to withdraw from the Istanbul Convention—a move its male Catholic bishops endorsed on the grounds that the treaty had introduced “gender ideology”—although the action was reversed following a change in government. Legislators in Uruguay are currently seeking to “rebalance” its law against gender-based violence based on unfounded claims that it leads to false accusations against men.

Troubling as these developments are, rather than a sign of the futility of the gender equality movement they may be more a reflection of the many successes that have occurred. It is noteworthy the extent to which authoritarian and authoritarian leaning governments are drivers of these changes.

Defending women’s rights key to rule of law

In the context of growing authoritarian movements, it’s important to recognise that opposition to women’s rights is not incidental to right-wing and authoritarian politics but central. The fight against those regressive politics must also be a fight for women’s rights.

The history of the transnational women’s movement over the past half century shows the potential of organised campaigns to drive reform. The global women’s movement has overcome tremendous opposition and built broad coalitions supporting women’s rights in the past.

As we confront these immediate threats to women’s rights, we must recognise that achieving and maintaining gender justice is intrinsic to the broader struggle for the rule of law. The women’s rights and gender justice advocates can play a critical role in countering the retrograde dreams of today’s political right.

I must confess that initially I was mystified by the phenomenon. It ran contrary to what I knew about development and the role of states in the process. Yet after reading the excellent book Ungoverning: The Attack on the Administrative State and the Politics of Chaos by Russell Muirhead and Nancy Rosenblum and as I examined developments further, it has come to make much more sense.

Muirhead and Rosenblum define ungoverning as the process of “leaders intentionally weakening the state they govern.” The implications for governance and the rule of law are worrisome though perhaps in a different way than understood until now.

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Ungoverning versus the rule of law

As regular readers will appreciate, the rule of law is a philosophical ideal and a societal condition that emerges through a combination of the right institutions, social practices, and norms. It’s an intangible phenomenon, though its existence is quite clear in societies’ where it is observed and patent where it is not.

While there are diverse views of what the rule of law is and how it comes about, one particularly important element is the role of the state. Without a reasonably strong and effective state, rule of law cannot arise or survive.

The state plays a critical role in defining what the law is and administering and enforcing it. If the state is not sufficiently strong to carry out those functions, the rule of law cannot emerge let alone be maintained over time.

From that standpoint, the process of ungoverning will inherently tend to undermine the rule of law. To the extent that it weakens the capacity of government to uphold the rule of law by enforcing it and administering it, ungoverning undercuts the foundations for legality in society.

This approach would be worrying enough were it all. If we consider the roots of rule of law, it is more troubling and perplexing.

What we know about how states consolidate

The emergence of strong states is something that occurs not in a once-and-done fashion but through an ongoing process of iteration linked tightly with the process of economic development. The causal trajectory runs in two directions.

The broad brush story begins with the process of economic development during which commercial activity starts to generate growth. As returns from economic activity grow, citizens become wealthier.

As incomes and wealth increase among citizens and business, governments can levy more taxes, generating greater resources for the state.

These increased state revenues enable consolidation of state institutions and the legal system. With greater resources, the government can improve its revenue gathering capabilities, creating a virtuous cycle leading to further improvements in government and law.

The improvements in state capacity and legal institutions in turn support further economic growth as investors and commercial actors gain greater faith in the integrity of markets and their ability to seek recourse in the event that deals go sour. Improvements in governance reduce the likelihood of government interference with the market through expropriation or favoring select economic elites.

Together these forces create reinforcing dynamics that lead to greater prosperity over time and incrementally strengthen law and the state. While there are some differences between countries, broadly speaking these dynamics are reflected throughout the OECD.

This account of the role of the state reflects the sociology of Max Weber, who described the development of bureaucratic rationality as central to the modern state. Weber argued that structured meritocratic bureaucracies could be distinguished from earlier types of rule, such as patrimonialism in which political leaders gained and maintained power through personalistic ties.

The synergistic effects of economic development that feed this process of Weberian state building have been illustrated in subsequent research. A notable contribution was John Brewer’s The Sinews of Power. Brewer’s fascinating historical research on Great Britain between the seventeenth and eighteenth centuries showed how, following the Glorious Revolution, the state’s revenue generating capacity improved markedly.

After the 1688 political settlement which upheld parliament’s supremacy in setting taxes, the government’s ability to gain revenues was dramatically enhanced. A key step was the professionalization and management of the Excise Office. From a prior tax system based on cronyism and self-dealing, civil service exams were instituted and controls on corruption implemented. The resulting income was used to support massive increases in British military capacity, particularly the navy. With the additional resources, the state was strengthened, jump starting a virtuous cycle.

Similarly, the development of the common law courts in Britain served to create the basis for commercial activity. As the economy grew, more resources could be given to the judiciary, which further enhanced faith in the market, fuelling the Industrial Revolution in turn.

A critical part of this dynamic of state strengthening followed by state revenue gains and economic development is the reinforcing feedback mechanisms that occur. Economists refer to this reinforcement as reverse causality.

Flipping the script

Ungoverning completely upends this state building trajectory in several ways.

First, rather than seeking to enhance government revenue collection, the Trump Administration has sought to reduce government revenues. It has taken steps to reduce the staff of the IRS and is seeking significant tax cuts.

Second, rather than enhancing the competence and effectiveness of the state, the administration is gutting the bureaucracy.

A critical problem with ungoverning is that it runs almost wholly against the historical record of countries’ experience with economic and governance development. There are major reasons to doubt that it will work.

Increasing complexity of the market economy requires more rather than less government. It is a well-known phenomenon that tax as a share of GDP increases linearly as the size of a country’s economy grows. In other words, poorer countries receive much lower percentages of GDP as tax than wealthier countries.

Contrary to the laissez-faire views propounded by America’s right wing (and often tacitly accepted today by American political centrists), generally speaking, the state has been an enabler of economic growth, not an inhibitor. The other two largest economies in the world—China and the EU—have massive bureaucratic capabilities. The so-called Asian economic miracle was characterized by highly competent bureaucracies, which evidence strongly suggests, was a major contributing factor of those results. It is no coincidence that the growth of the administrative state in the US occurred during the twentieth century as the US economy became dominant.

Reconciling the accounts

Ungoverning thus represents a dangerous and novel experiment. In the effort to hamstring the state’s ability to do things, many types of injustices will occur, such as preventing discrimination. But the state will also be unable to play the enabling and supportive role it has throughout the growth of the American economy during the past 125 years.

While the US has tended to have a more liberal market orientation than, say, many European countries, the important role of the state and bureaucracy in enabling its development process is largely consistent with the trajectories of other developed countries. Whether one believes in the notion of American exceptionalism, in this respect its experience is consistent with many other countries’ development paths.

The time frame for the full impact of ungoverning to be realized is long term and the current administration will likely be long gone by the time the accounts are settled.

It is possible that these changes will disprove historical experience, but I wouldn’t count on it.

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It’s an incredibly well written …

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It’s an incredibly well written book especially given the density of the topic. In this lively discussion, he makes the concepts accessible and underscores the practical relevance of these ideals to our societies today.

Although there are many reasons to fear for the rule of law today, Postema identifies grounds for hope and suggestions for how citizens can help reverse rule of law decay.

It’s a lively discussion, which I enjoyed tremendously and hope you will too. Check out the podcast on any of these links below.

Apple podcasts

Spotify podcasts

https://newbooksnetwork.com/laws-rule