This chapter explores the synergies, limitations, and challenges of addressing statelessness through human rights and development approaches, using the Hill Country Tamils of Sri Lanka as a case study. In addressing the legacy of statelessness, both the human rights and development frameworks must be drawn on and used simultaneously. However, a frameworks approach alone falls short in addressing statelessness, given the political, economic and societal factors that perpetuate discrimination. Instead, as the case of the Hill Country Tamils demonstrates, both human rights and development approaches must be underpinned by a deeper commitment to pursuing equality and combatting discrimination at large. Despite claims of success, the legacy of statelessness in Sri Lanka still lingers. The Hill Country Tamils are still among the ‘furthest behind’ in Sri Lanka and continue to experience severe discrimination well after securing formal citizenship. The community’s prolonged statelessness has led to long-term deterioration in human rights conditions, such that a grant of formal citizenship alone is inadequate to address structural drivers of disadvantage that the community continues to endure.

The classification of natural spaces and cultural practices as ‘heritage’ profoundly alters their form and function. Individuals and communities responsible for maintaining the space or practice are often subjected to the dictates of governments, non-governmental institutions and tourists’ tastes, whilst the symbols of heritage themselves are projected as emblematic of how the state wishes itself to be perceived. The condition of statelessness magnifies the vulnerability of communities to these processes of heritagization, with the state co-opting cultural attributes into icons of heritage without any prospect of redress and exacerbating the invisibility and relative lack of agency that characterize many stateless communities. This chapter explores these issues in the context of mobile maritime communities that are stateless or at risk of statelessness in Southeast Asia. It demonstrates how states such as Malaysia, Thailand and Myanmar have introduced restrictions on everyday livelihood practices through the imposition of marine protected areas and transformed other aspects of these communities’ lives, such as their houseboats, into objects of touristic consumption under the aegis of natural, cultural and intangible ‘heritage’ that serve to benefit the state yet further degrade the human rights of individuals in the affected communities.

This chapter challenges the idea that the classical Roman jurists were “pioneers of human rights.” The jurists had no doubts about the legitimacy of the hunt for human prey in war. Quite the contrary: they thought of the capture and enslavement of enemies as a paradigm of just acquisition. It is crucial that we come to terms with this ancient belief system: We must recognize that the classical jurists did not see any need for justification for slavery beyond the fact of victory in battle or in the sack of cities. The use of theories like Aristotelean natural slavery or the teaching that slavery arose out of the consent of the victim date only to the early modern period. The chapter closes by discussing how the jurists used the model of the hunt for human and animal prey as the basis for analogical reasoning.

This chapter canvasses coalitions for and against pluralism that emerged with the foundation of the Republic of Turkey. It shows that while the early nation-builders pursued a unitary, ethno-nationalist project, Kemalism also entailed an “embedded liberalism” inherited from late Ottoman modernization, including resources for eventual democratization. Throughout the twentieth century, political actors sought to mobilize these resources toward pluralizing the political system across a series of critical junctures (e.g., the 1920s’ cultural revolution; the 1950 transition to multiparty democracy; successive coups in 1960, 1971, and 1980; and a 1997 “postmodern coup.”) Across these junctures, the chapter argues, there were only two pronounced periods of secularist/Islamist cleavages. More often, conflict was driven by significant, cross-camp cooperation and intra-camp rivalry. Tracing when and why pluralizing and anti-pluralist alignments succeeded or failed, the chapter captures a key dynamic: the installation of an ethno(-religious nationalist project – the Turkish-Islamic Synthesis (TIS) – as national project, even as ideas and actors invested in pluralization continued to mobilize.

This chapter launches the contemporary section of the book. The overarching argument is that despite the binaries leveraged by leaders and analysts alike, political contestation in the twenty-first century, as in the nineteenth and twentieth, is not reducible to an “Islamist vs. secularist” cleavage. Instead, contestation and key outcomes are driven by shifting coalitions for and against pluralism, notably, an Islamo-liberal/secular liberal coalition that marked the sixth major, pluralizing alignment since the Tanzimat reforms. It would transform state and society, even though the coalition itself proved short-lived as democratization stalled against a backdrop of debates over Islamophobia, the headscarf, minority rights, freedom of expression, media freedoms, and sweeping show trials.

Chapter 10 explores democracy versus autocracy. It offers a frequency-based fitness analysis of the political regimes in the world, demonstrating the superior fitness of democracy, represented by the United States in time and place, but also revealing the resilience of non-democratic forms of government, represented by China. Countering the larger historical trend, democracy has retreated and autocracy has gained in recent years. It is difficult to tell whether this is a temporary setback for democracy or the start of a longer trend. Evolution does not assume constant progress, so the chapter dives deeper into the performance criterion for competing political regimes by peeling off the labels and examining different components of a political regime. In addition, the chapter offers a discussion of how East Asians have lived with the liberal international order, which most current American and Western leaders view as central to their fight against autocracy.

In Chapter 3, I illustrate the macro-level role of a society’s emotional history, defined as the collective emotional response to historical events, in galvanizing state support. I argue that by leveraging the opportunities offered by the Kirchner moment and the bicentennial, with its opening toward new histories of women, people of color, and other marginalized communities, Black activists successfully employed discursive and emotional repertoires of the human rights movements in interactions with the state. For example, societal shame and haunting tied to the concept of “the disappeared” provided the political currency to achieve state-level recognition by calling on the government to address the historically attempted genocide of Afro-Argentines as a human rights issue. This strategic activism resulted in Law 26.852, the National Day of Afro-Argentines and Black Culture, as well as other Movimiento Negro successes at the state level.

In this book, I examined how public authorities’ reliance on algorithmic regulation can affect the rule of law and erode its protective role. I conceptualised this threat as algorithmic rule by law and evaluated the EU legal framework’s safeguards to counter it. In this chapter, I summarise my findings, conclude that this threat is insufficiently addressed (Section 6.1) and provide a number of recommendations (Section 6.2). Finally, I offer some closing remarks (Section 6.3). Algorithmic regulation promises simplicity and a route to avoid the complex tensions of legal rules that are continuously open to multiple interpretations. Yet the same promise also threatens liberal democracy today, as illiberal and authoritarian tendencies seek to eliminate plurality in favour of simplicity. The threat of algorithmic rule by law is hence the same that also threatens liberal democracy: the elimination of normative tensions by essentialising a single view. The antidote is hence to accept not only the normative tensions that are inherent in law but also the tensions inherent in a pluralistic society. We should not essentialise the law’s interpretation, but embrace its normative complexity.

This chapter introduces the main research themes of this book, which explores two current global developments. The first concerns the increased use of algorithmic systems by public authorities in a way that raises significant ethical and legal challenges. The second concerns the erosion of the rule of law and the rise of authoritarian and illiberal tendencies in liberal democracies, including in Europe. While each of these developments is worrying as such, in this book, I argue that the combination of their harms is currently underexamined. By analysing how the former development might reinforce the latter, this book seeks to provide a better understanding of how algorithmic regulation can erode the rule of law and lead to algorithmic rule by law instead. It also evaluates the current EU legal framework which is inadequate to counter this threat, and identifies new pathways forward.

In Chapter 3, I developed this book’s normative analytical framework by concretising the six principles that can be said to constitute the rule of law in the EU legal order. Drawing on this framework, in this chapter I now revisit each of these principles and carry out a systematic assessment of how public authorities’ reliance on algorithmic regulation can adversely affect them (Section 4.1). I then propose a theory of harm that conceptualises this threat, by juxtaposing the rule of law to algorithmic rule by law (Section 4.2). Finally, I summarise my findings and outline the main elements that should be considered when evaluating the aptness of the current legal framework to address this threat (Section 4.3).

Chapter 5 considers the surveillance of potential terrorists and their arrest, including the force that may be employed to do so. Once in custody, criminal suspects should be interviewed without the threat or use of physical coercion in order to gather evidence to decide whether or not it is right to engage a prosecution for terrorism (or other criminal offences). In certain circumstances, control orders or similar judicial decisions may limit the actions at large of an individual suspect with a view to protecting the public. Most controversial of all, preventive detention by the State may sometimes be made where an individual has been convicted of no crime and is not being held on remand with a view to future prosecution. The chapter addresses these issues in turn considering the treatment of terrorist suspects in accordance with fundamental human rights.

In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

The process of constitutionalizing intellectual property rights highlights absurdities associated with unequal and asymmetrical power relations within the politics of intellectual property and exposes the inherent conflicts between international legal harmonization and unbalanced trade powers in intellectual property constitutionalism. This chapter begins by demonstrating the gap between the mere existence of a constitutional equality provision and its application on the ground. The chapter then examines how inequality is a defining concept in intellectual property that can be articulated in many forms. It discusses intellectual property constitutionalism and highlights the lack of scholarly attention to intellectual property in formal constitutions and the implications. This chapter further demonstrates the incorrect assumption that adding intellectual property rights to a constitution will provide better protection for these rights and discusses how this assumption is predominantly a result of global political inequality and asymmetrical power relations. The chapter evaluates the ideological motivations of countries to adopt intellectual property as a socio-economic right in their formal constitutions. It further introduces and empirically analyzes the results of the collected data. This chapter concludes by discussing the inequality-related consequences of unbalanced constitutional commitments in the intellectual property area.