This introduction develops a theoretical framework for understanding authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding and complete breakdown of judicial independence and human rights

Authoritarian backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.

It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court’s subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in ‘vulnerability backsliding’. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the ‘special protection’ to which they were previously afforded courtesy of M.S.S.

This article critically examines the significance of the relationship between past and present for understanding liberal democratic values in the European context. The article starts by reflecting on the terms used to evaluate the apparent decline in the rule of law in Europe, including ‘backsliding’. It argues that these terms are indicative of a conceptual framework of analysis that includes a temporal dimension but is only partly historical, demonstrating a presentist focus and a perception of the past as a separate period. The article links this perception with the conceptual construction of the rule of law itself, as well as national and transnational narratives about it, which evoke Europe’s non-democratic past as a definitional point of reference that is distinct from the present. Using examples of the legacies of Europe’s dark legal past, the article highlights the artificial nature of this distinction for a range of systems with differing historical experiences. The article argues that interpreting the past in terms of segmented and sequential temporal periods is conceptually contestable and it draws on the philosophy of history to show how the past can instead be understood to have ‘sedimentary’ layers and to endure over time. Ultimately, the article argues that the relationship between law’s past and law’s present needs to be reconceptualised in terms of metaphorical ‘fault lines’ in the rule of law, to acknowledge the potentially disruptive effects of history and to facilitate a critical reimagining of the rule of law’s theoretical and factual foundations.

This article discusses the thin socio-legal conceptualisation of the rule of law in Hungary. Employing a culturalist perspective, it first shows how the rule of law had a thin foundation prior to the Second World War in this country. Then, the contribution demonstrates how, contrary to previous understandings, even in the most advanced stages of rule of law building in Hungary, in the early 1990s, the resulting concept had been thin mainly focusing on institutional guarantees and legal certainty. The remaining part of the contribution then critically discusses whether and to what extent it is possible to use backsliding to frame the ongoing legal changes in Hungary.

States’ bordering practices force individuals to undertake dangerous migratory journeys and put them at risk of severe human rights violations. Yet, irregular arrivals who are found not to be at risk of serious harm in their countries of origin are perceived as voluntary migrants and are therefore assumed not to be in need of protection. This article employs the concept of vulnerability to challenge the idea that both the initial and subsequent dangerous migratory journeys are undertaken voluntarily. Based on an analysis of trafficking-based asylum claims from the UK and Germany, the article shows that both re-trafficking and irregular re-migration result from vulnerabilities which converge to preclude reintegration in the country of origin and access to livelihood options. While some of these vulnerabilities are likely to be present at the time of the initial dangerous journey already, the article pays particular attention to ‘consequential vulnerabilities’ brought about by previous migration experiences. It then introduces the concept of ‘route causes’ of irregular re-migration to describe factors which heighten the risk of re-migrating irregularly and therefore establish a risk on return related to harm experienced during irregular migration, rather than in the country of origin. Thus, the article shows that the vulnerability concept informs the future risk analysis in refugee law and argues that, just like a risk of re-trafficking, a risk of irregular re-migration could form the basis of an asylum claim.

Both Hungary and Poland have been in the spotlight regarding their democratic backsliding, with Executives exerting control over supposedly independent pillars of democracy, such as courts or the media. While the concerns about these countries also voiced by leaders of European institutions were similar, the resistance against the systematic erosion of judicial independence comes in different forms. Using comparative longitudinal case study methodology, this article shows that a defining characteristic in the potential, visibility and feasibility of what judges did or could do under the current threats depends on the role judicial associations, understood as representative collegial judicial bodies. More precisely, the format, organisation and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Empirically, the article reviews multiple judicial changes in the 1992–2015 period in both countries and assesses how judicial associations then shaped the divergent responses to recent attempts at limiting judicial independence. The differences in the legal framework, organisation and network reliance explains variance in resistance. Overall, the article broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organisation and co-ordination, as a potential layer of studying judicial resistance.

The traditional drafting and subsequent implementation of international refugee law have been criticised for relying on a male-centric understanding of persecution. Whilst this framework has recently shifted to include a more gender-sensitive interpretation, I argue that this introduction of gender within refugee status determination has traditionally relied on narratives infused with gendered and racialised stereotypes. In particular, it relies on a ‘white saviour’ colonial narrative that perceives refugee women as vulnerable victims in need of saving. Drawing on a decolonial and critical epistemological analysis that includes both a race and gender dimension, I unpack the epistemic violence and hidden colonial legacies in the representation of refugee women in case-law. Ultimately, this article concludes with a call for reframing the legal narrative around refugee women by approaching them as political actors rather than oppressed and vulnerable subjects.

In recent years, Western governments have invoked the values of universal human rights to justify large-scale military operations. Critical theorists have often responded that these campaigns serve not to promote peace, stability, or prosperity, but to entrench Western economic and political power, often in ways that have been devastating for local populations. However, Russia’s 2022 invasion of Ukraine casts doubt on whether assumptions about Western dominance will continue to furnish adequate accounts of global armed conflict. Critical theorists base many of their views on what is sometimes called ‘memory politics’, meaning that they cite histories of Western militarism, colonialism, racism and economic exploitation as backdrops to current policies. In this article it is argued that they will only be able to explain a conflict like the Ukraine war with credibility by incorporating into their memory politics the left’s own histories of supporting autocratic regimes.

This article aims to reflect on ‘ecological vulnerability’ – which makes evident the relationship, flows and interactions between the human being/body and the environment/non-human world – as applied in the context of environmentally induced migration. In particular, the dual role of the law vis-à-vis environmentally displaced migrants as a generator and exacerbator of their vulnerability as well as potential antidote, valuable for attaining protection, will be highlighted. Namely, on one hand, the analysis will show how a lack of conceptualisation of the notion to understand the spatial and temporal patterns of climate change-related migration, as well as its consequences for societal well-being, contributes to generate and exacerbate the vulnerability of that category of migrants. On the other hand, the critical understanding of vulnerability, as developed in some recent legal reasoning of international and national jurisdictions, will be proposed as a key element for ensuring the resilience of both environmental migrants and the law itself, for both virtuously expanding traditional asylum norms and flexibilising access to international protection for those migrants.

To date the mainstreaming of equality and human rights law into public sector organisations has been underwhelming with the implementation of these norms being ad hoc and inconsistent. Existing research on factors that influence implementation has been either too general or too disjointed. This article has two aims to advance research on the implementation of equality and human rights: (i) to outline factors that influence the implementation of these norms and (ii) provide a more settled foundations for future research on equality and human rights implementation. It does this through interviews, undertaken in 2018–2019, with individuals responsible for leading the implementation of equality and human rights law within public sector organisations (specifically regulators, inspectorates and ombudsmen) in England and Wales. On the basis of this, the article makes suggestions for how the implementation of equality and human rights can be advanced further through changes to the regulatory environment.

The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.

The professionalisation, institutionalisation and standardisation of transitional justice has often been critiqued for pushing more informal, vernacular or experimental approaches off the radar. While this concern is legitimate and needs to be addressed, this article explores the continued relevance of standardised approaches, and of a shared language of transitional justice more specifically. I develop this argument against the background of recent events in the Philippines where, in May 2022, Ferdinand Marcos Jr., son of the former dictator, won the presidential elections. In this article I show that there has been a multiplicity of context-sensitive, vernacular and experimental transitional justice initiatives to deal with intersecting and multilayered legacies of violence, but that what has been missing is an overarching framework as expressed through the discourse of transitional justice, and the potential to forge collaborations and coalitions on the basis thereof. The case of the Philippines hints at the potential of a more ecological understanding of transitional justice in which justice actors involved in standardised and vernacular, formal and informal, state and non-state, top-down and bottom-up approaches recognise each other and certain shared objectives through the shared language and normativity of transitional justice.

QUALIS is a research project that studies ‘the other side of courts’ by looking at the working conditions of judicial professions in Portugal and their impacts on the profession, health, family and personal life. The objective of this article is to provide an overview of the results obtained, based mainly on the interviews and the online questionnaire administered to the Portuguese judicial professions (judges, public prosecutors and court clerks). The questionnaire was sent to all professionals (more than 10,000) working in the courts and had a good response rate; the interviews were conducted among the three judicial professions. The article focuses on three main dimensions of working conditions, namely physical environment, working time and work intensity, and work/social environment of professionals working at first instance courts. It will make then a further analysis of their impacts in the health and well-being and in the work-family conflict of the judicial professionals.

Debates about cultural participation of persons with disabilities within legal and socio-legal scholarship and within disability studies tend to remain disconnected. This article brings legal analysis and other academic disciplines into a critical dialogue. It sheds light on how the right to cultural participation is understood from the bottom up, building on a study carried out across Europe. Participants in this study perceived opportunities to participate in, and to contribute to, arts and culture in ways that are consistent with the human rights approach to disability as expressed in the UN Convention on the Rights of Persons with Disabilities, and as central to the concept of inclusive equality. Cultural participation was also understood as intrinsic to the humanity of all people, as vital to inclusion in mainstream life, as capable of communicating experiences or identities not otherwise represented, and as potentially transformative of art-forms and ultimately, of society.