In this chapter, I lay out a theory cataloguing the conditions under which international courts may be expected to issue audacious rulings. This theoretical framework relies on previous literature and insights gathered from interviews with experts in and around the Court. The necessary condition for audacious courts is a wide discretionary space within which they may act without fearing repercussions from states. Yet, such a wide discretionary space is not always given; when it is given, states might still attempt to influence courts through direct or indirect means. Such means include closing down courts’ discretionary space and widespread negative feedback, as well as related threats. International courts, in turn, are compelled to realign their priorities to react to or pre-empt such measures. This is a form of trade-off whereby courts adjust their behaviour to ensure continued access to resources and to preserve their reputation and public image. The chapter also introduces additional factors that increase the likelihood of audacious rulings (i.e., proposed new understandings’ congruence with changing societal needs, legal developments external to the regime, and civil society campaigns).

The Conclusion draws together the key themes explored in this book. Highlighting the crux norms of comity, collaboration, and conflict management framed by the conditions of reciprocity, reputation, and repeat play, the Conclusion defends a relational and collaborative conception of the separation of powers. Looking to new horizons, the Conclusion gestures at future lines of research opened up by the collaborative idea, including the possibility of imagining international, supra-national, and transnational law in collaborative terms. It concludes by presenting the fundamental norms of the collaborative constitution as vital in the current moment, but also as a form of ’constitutional capital’. On analogy with the influential idea of ’social capital’, it argues that the unwritten norms of the collaborative constitutional system are a precious constitutional resource we should preserve, protect, and enhance in order to create stable and sustainable constitutionalism for the twenty-first century.

How do citizens respond to information on electoral interference in their country? Chapter 6 presents the second vignette survey experiment, and we again see individuals taking distinct positions on citizenship norms that correspond to partisanship. Like in polarization, we see status quo challengers respond to threat. Unlike polarization, they respond not with norms of liberal democratic beliefs but with behavior – that is, expectations of a more active, engaged citizenry. Moreover, we also observe a strong status quo bias, in which winners of the election in question generally do nothing. Where norms are affected for citizens supporting incumbent power holders, we observe impatience (US) and demobilization (UK). Meanwhile, the partisan left – as governing outsiders and losers of the elections in question – are more likely to value vigilance – watching the government (US, UK) and understanding how politics and the government work (UK, Germany), alongside other active, engaged citizenship attributes. Evidence of interference in majoritarian systems, compared to Germany’s consensus political system, produces stronger partisan differences.

According to the Doctrine of Doing and Allowing, there is a moral difference between doing something and allowing it to occur. Its defenders and critics both assume the existence of an ontological difference that the purported moral difference is said to supervene upon. This difference – between so-called positive acts of doing and negative acts of not-doing – was famously introduced by Gilbert Ryle, who argued that the latter (which include neglect) were not really actions at all. He is opposed by Davidsonians who, by contrast, maintain that negative act tokens are just positive acts under negative characterisations. In this chapter, I argue that both the moral and the metaphysical debates rest on the mistaken belief that actions and/or their characterisations can be neatly divided into those that are positive and those that are negative. I use a wide range of examples to demonstrate how all action contains inaction, and vice versa. Moreover, ontological perceptions of what is positive and what is negative cannot be neatly separated from evaluative ones. None of this entails that there can never be any moral difference between doing x and allowing x to happen. But it is not one that can be captured by any principle, not least because any given instance of doing x will involve the not-doing of some other thing (a, b, or c …), and any case of of allowing x to happen will be inseparable from doing some such other thing, where the doing of a involved in allowing x may be morally worse than the allowing of a which occurs in doing x. I conclude that the Bhagavad Gita is right in proclaiming that the ability to reliably perceive one’s action in inaction, and vice versa, eludes us.