Public opinion backlash

In the public opinion (i.e., non-formal institutional) realm, backlash is associated with the diffusion of reactive discourses and symbols opposing advancements in rights protection both through traditional mass media (TV, radio, print) and newer social media and information technologies (e.g., Facebook, X, bots). The reproduction of these discourses and symbols – often rooted in hate speech and misinformation (Baldauf et al. Reference Baldauf, Ebner and Guhl2019) – can influence beliefs (Castells Reference Castells2007) and behaviors (Nacos et al. Reference Nacos, Shapiro and Bloch-Elkon2020), including the incitement of violent actions (Koopmans and Olzak Reference Koopmans and Olzak2004).

Opinion backlash is successful when it produces “a large, negative, and enduring shift in opinion against a policy or group” (Bishin et al. Reference Bishin, Hayes, Incantalupo and Smith2015: 2). The issue of immigration in Europe provides an example. The dissemination of political leaders’ rhetoric linking migration to parasitism, reluctance to integrate, and even criminality has fueled public hostility toward immigrants and legitimized policies restricting their rights (Lesińska Reference Lesińska2014).

Institutional backlash

Backlash in the institutional realm can occur across various arenas of state decision-making and practice where mobilization takes place. The most prominent of these is the political realm, where counterreforms to policies or state agencies can be promoted to reverse advancements in rights protection. An illustration of successful radical political backlash is provided by counterreforms against redistributive land reforms in mid-20th-century Latin America. In countries like Guatemala and Chile, reformist presidents were overthrown through coups, land reform policies were repealed, and expropriated lands were returned to their original owners (Kay Reference Kay1998; Wittman and Saldivar-Tanaka Reference Wittman, Saldivar-Tanaka, Rosset, Patel and Courville2006).

Now, backlash can also occur in the judicial and executive arenas. These arenas are typically the domains of ordinary legal mobilization (Lehoucq and Taylor Reference Lehoucq and Taylor2019), and hence frequent sites of pushback. However, backlash happens therein when the challenge extends beyond a specific judicial or administrative decision that advances rights protection, questioning the underlying rules or the authority of decision-makers (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018).

Thus, judicial backlash involves promoting a judicial decision to overturn or curtail a pro-rights policy or state agency’s mandate (Ruibal Reference Ruibal, Botero, Brinks and Gonzalez-Ocantos2022). A notable example is the 2022 U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the long-standing precedent set by Roe v. Wade (1973) on the right to abortion. The ruling was grounded on the Court’s assertion that it lacked authority to decide on the matter, leading to the devolution of such authority to individual states, even in the case of abortion bans (Murray and Shaw Reference Murray and Shaw2024).

Similarly, executive backlash entails advocating for an executive decision that restricts the implementation of a pro-rights policy or curtails the mandate of the responsible agency. The scope and target of such a decision depend on the formal distribution of competences in the executive branch, both vertically and horizontally. However, when successful, executive backlash can lead to far-reaching decisions. Recent examples include US President Trump’s order to reverse Diversity, Equity, and Inclusion (DEI) programs in federal agencies, claiming their discriminatory nature (Harvard Law School Forum on Corporate Governance 2025), and Argentine President Milei’s decree to eliminate the National Institute against Discrimination, Xenophobia and Racism, claiming its ideological politicization (CELS 2024).

Table 1 summarizes the realms in which, according to the literature, backlash can occur. It also outlines the expected outcome of backlash in each realm, if successful.

Table 1.

Types of backlash by realm of mobilization and main expected result, according to the literature

Table 1 Long description

The table categorizes types of backlash by where mobilization occurs and the main outcome expected if backlash succeeds. Public opinion backlash operates through mass or social media and is expected to create negative views of rights, inclusive policy, or agencies, leading to reduced public support. A political route, listed alongside public opinion backlash, occurs in Congress or elected government and aims to reverse pro-rights policy or dismantle a state agency. Institutional backlash includes a judicial or quasi-judicial route through tribunals or administrative bodies that review legality or enforce law in specific cases, with the goal of overturning or narrowing pro-rights policy or an agency’s mandate. It also includes an executive route through administrative agencies that implement policy, aiming to reverse or limit implementation or an agency’s mandate. Overall, the expected results shift from changing public attitudes to directly undoing policy or weakening institutions, depending on the realm.

Veiled backlash

When the literature refers to the former realms as arenas for mobilization and backlash, it often assumes that regressive actors make claims to state agencies as if they were minimally separate from them. Agencies may not grant or dismiss such claims solely on the grounds of their connections with such actors, but rather on the grounds of the law. Sure, there are uneven material, organizational, and informational resources that can be used to formulate stronger arguments, increasing the likelihood of success before state institutions (Galanter Reference Galanter1973). There are also politicians, bureaucrats, and judges who have ideological or interest affinities with certain actors, which make them more likely to decide in their favor (Segal and Spaeth Reference Segal and Spaeth1993). There are even activist bureaucrats who mobilize within the state to push for policy implementation on ideological grounds (Anria et al. Reference Anria, Garay and Rich2024). However, the very definition of the state requires that its agents maintain a degree of autonomy from society, even when they are socially embedded (Evans Reference Evans1995), since otherwise they risk being indistinguishable from a gang of bandits (Hart Reference Hart1961; Rodgers Reference Rodgers2006).

Now, as the literature on weak state capacity and institutions has emphasized (Brinks et al. Reference Brinks, Levitsky, Victoria Murillo, Brinks, Levitsky and Murillo2020; Centeno et al. Reference Centeno, Kohli and Yashar2017; Levitsky and Murillo Reference Levitsky and Murillo2009; O’Donnell Reference O’Donnell1993), there is significant variation in the infrastructural, budgetary, and human resources available to formal institutions across and within states, which makes them more or less vulnerable to the influence of de facto powers. In O’Donnell (Reference O’Donnell1993: 1359)’s terms, many countries have large “brown” zones – geographical or functional areas where state agents do not treat all citizens’ claims equally, but rather selectively, as they are heavily influenced by de facto power dynamics. This phenomenon is not limited to authoritarian regimes but is also prevalent in many democracies (O’Donnell Reference O’Donnell1993: 1355).

When state agents are thus influenced, they may seem to act like the state because they invoke legal justifications for their decisions. But they do not really do so, since those justifications are not the true motivators of their decisions, and the legality of their actions would likely be called into question upon closer scrutiny (Brinks et al. Reference Brinks, Levitsky, Victoria Murillo, Brinks, Levitsky and Murillo2020: 23–4; Smulovitz Reference Smulovitz2022: 241). Moreover, such selective application of the law may be easily attributed to problems of insufficient resources, rather than the intentional favoritism of certain interests. Indeed, it is difficult to determine whether a state agent’s decision to favor the interests of a particular group is driven by a deliberate choice or rather by a lack of technical expertise or material resources to come up with a different decision (Holland Reference Holland2016). It is also a challenge to understand whether institutional capacities remain low over time because they are inherently difficult to strengthen or because they bring such advantages to the beneficiaries of selective application that there are not sufficient incentives to invest in increasing them (Brinks et al. Reference Brinks, Levitsky, Victoria Murillo, Brinks, Levitsky and Murillo2020: 29).

To account for these situations and facilitate their analysis, we introduce a novel institutional realm, which we call the “internal face” or “backdoor” of the state. In it, backlash adopts a veiled or clandestine facet. Veiled backlash pursues the regressive objective of taking back or restricting progressive advancements in rights, and it is extraordinary because it seeks to do so by subverting or transforming institutions. Yet it operates from within state agencies, and hence beyond the reach of public scrutiny, making decisions that lack or have questionable legal justification appear as though they are legally sound. Veiled backlash can impact agencies that are crucial for rights protection. Such agencies include courts, investigative police units, prosecutorial offices, security and intelligence archives, centers for the attention of victims, and offices dedicated to promoting rights protection – such as anti-discrimination agencies, reproductive health centers, anti-corruption offices, among others.

As Table 2 indicates, veiled backlash differs from public backlash in that it is not driven by the usual coalitional politics and legal mobilization mechanisms that shape state decisions. Instead, it arises from the internal influence of regressive actors within state agencies. This influence facilitates the promotion of internal decisions and even informal policies regarding rules of competence and operation, resource allocation, personnel appointments and dismissals, and so on. These practices increase the likelihood of regressive decisions and, consequently, reduce the uncertainty that is typically associated with decision-making procedures where conflicting sides compete to prevail in a state forum.

Table 2.

Types of backlash by faces of the institutional realm

Table 2 Long description

The table compares two settings for backlash leading to regressive decisions: external public backlash and internal, backdoor veiled backlash. For external backlash, claimants and adversaries use external legal arguments and resources through coalitional politics and legal mobilization, and the regression is openly defended as a legitimate reaction. The likelihood of a regressive decision in the external setting is uncertain because legal resources, ideology, and institutional capacity influence outcomes but do not predetermine them. The legal grounds for external backlash are described as solid. For internal veiled backlash, regressive outcomes are driven by informal competence decisions and internal policies that block or steer external decisions, including corruption, collusion, or capture. This internal backlash is not publicly justified and must be detected through research methods rather than official explanations. The likelihood of regressive decisions is high in the internal setting because captured agents reduce uncertainty and weaken the role of legal arguments. The legal grounds for internal veiled backlash are characterized as dubious or seemingly spurious.

A prominent example of veiled backlash is the covert resistance against the “anti-corruption crusade” known as Lava Jato, which began in 2014 in Brazil and spread throughout Latin America. Threatened by potential criminal sanctions for their involvement in the transnational corruption network under investigation, political and economical elites leveraged their influence within state agencies to remove key prosecutors in countries like Peru (González-Ocantos et al. Reference González-Ocantos, Muñoz, Pavao and Hidalgo2023: 108–13).

Veiled backlash may be easily distinguished from public backlash, since the latter involves explicit arguments regarding the legality and desirability of reversing or restricting rights protections and dismantling responsible agencies. In fact, definitions of backlash often refer to the overt criticism or defiance of targeted institutions as an important characteristic (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018; Soley and Steininger Reference Soley and Steininger2018). In contrast, veiled backlash may share similarly ambitious goals, which are, however, not openly advocated in the public sphere.

An illustration of the difference between veiled and public backlash can be found in the reaction of Guatemalan elites to corruption investigations conducted by domestic state agencies and the International Commission against Impunity in Guatemala (CICIG). Elites deployed veiled backlash against domestic investigations, such as the “Comisiones Paralelas” case opened in 2018, which revealed their control over high-level judicial appointments and favor-trading. Veiled backlash tactics included the removal of pro-accountability prosecutors and questionable judicial decisions that annulled arrest warrants, rejected requests to lift immunity, released defendants, and closed investigations (Jody and Mejía Reference Jody and Mejía2022). These actions generally went unnoticed by the public and mass media. In contrast, with its international composition and funding designed to circumvent elite influence within state agencies, CICIG made it harder for veiled backlash to succeed. As it uncovered links between organized crime and high-level political figures – including presidents – elites resorted to public backlash. The government overtly confronted CICIG, declaring its head persona non grata, denying visas to its staff, and announcing the non-renewal of its mandate, accusing the commission of selective prosecution and instigating judicial terror (Call and Hallock Reference Call and Hallock2020).

Although justifications for public backlash are often misleading, its openness allows for public criticism and contestation. In contrast, veiled backlash can surreptitiously lead to full policy or state agency overhauls without public awareness. Consequently, methodological strategies are required to detect veiled backlash. These strategies may include, for instance, indicators assessing the solidity or technical merit of the legal justifications behind state decisions (Brinks et al. Reference Brinks, Levitsky, Victoria Murillo, Brinks, Levitsky and Murillo2020: 23) and counterfactuals to estimate the rate and direction of decisions that state agencies would have made in the absence of veiled backlash.

Explaining the choice of realms

According to Meyer and Staggenborg (Meyer and Staggenborg Reference Meyer and Staggenborg1996: 1650), while movements tend to respond to defeat in one arena by mobilizing in an alternative one where opportunities are open, movement-countermovement dynamics imply that countermovements may not shift to these alternative arenas unless their adversaries’ chosen field is fully closed due to their success. Moreover, the shift to alternative fields depends on the availability of additional institutional venues for action, which increases as governmental authority becomes more divided – i.e., with greater decision-making dispersion due to the separation of powers and federalism (Meyer and Staggenborg Reference Meyer and Staggenborg1996: 1637).

Following the literature on organized state corruption (Darden Reference Darden2002; Helmke and Levitsky Reference Helmke and Levitsky2004; Moreno Ocampo Reference Moreno Ocampo2002), we argue that the choice of subsequent realms of action depends not only on the formal opportunities for contestation that such realms offer, but also on the informal opportunities to influence decisions through the state’s backdoor. While formal opportunities refer to openings for institutional claim-making, informal opportunities involve openings for engaging in corruption, collusion, or infiltration within state agencies to influence their decisions. We further argue that informal opportunities need not be alternative to formal ones; they can also complement, or reinforce, formal opportunities. Indeed, in response to a legal mobilization triumph in a specific case, regressive actors may appear to mimic their adversaries by using legal tactics in the judicial arena, while also leveraging informal opportunities to improve their chances of success in that case and future ones (see Payne et al. Reference Payne, Pereira and Bernal-Bermúdez2021: 181–8 on corporate veto through political connections). Consequently, we hypothesize (H1) that the greater the informal opportunities for influencing decisions through the state’s backdoor, the more likely regressive actors are to operate within that realm – the availability of formal opportunities notwithstanding.

Further, building on the literature on state collusion and capture (notably, Yashar Reference Yashar2018), we argue that informal opportunities within state agencies are shaped by the formal institutional weaknesses of such agencies and the de facto power of anti-rights networks. We hence hypothesize (H2) that the greater the institutional weakness of a state agency in a given realm, and the more hegemonic the de facto power of a regressive network in the territory where that agency operates, the more likely the network is to exert dominant influence over the state agency.

Now, the informal influence of regressive actors may vary not only within a given state agency but also across state agencies in a given level and realm, and even across different levels or realms across the territory (Yashar Reference Yashar2018: 65–99). We can observe networks that dominate a particular state agency within a realm (say a single tribunal, bureaucratic office, or legislative commission); across state agencies at the same level within a realm (say local tribunals, or police units in a province); across realms in a level (say local tribunals and police units in a municipality); or across levels within a realm (say local and federal tribunals). We call this the scope of influence of networks, which can be measured by the number of state agencies across realms in which the network exerts influence. We hypothesize (H3) that the greater the scope of influence of regressive networks within a given realm (and across realms), the more likely it is for the network to determine state agencies’ decisions within that realm (and across realms).

Illegal violent reactive tactics

On the right-hand side of the table, we find violent behaviors. These are the most extreme form of illegal reactive tactics because they abandon the use of available institutional channels to resolve conflicts. Certain forms of violence tend to be employed in specific realms and aimed at particular targets. For example, in the political sphere, coups, armed rebellions, and riots have occasionally been used to reverse laws facilitating trials for human rights violations (see, e.g., Acuña and Smulovitz Reference Acuña, Smulovitz and Acuña1995; Payne Reference Payne2000). In turn, in the judicial realm, torture is sometimes inflicted on witnesses or defendants in human rights trials to coerce false testimony that wrongfully incriminates innocent individuals, enabling the guilty to evade justice (see GIEI Reference GIEI2023: 259–60 on Mexico).

Yet there are other forms of violence that tend to be used across realms. That is the case of targeted murders, attacks, and threats against right-seekers, activists, judges, and politicians (see, e.g., Koopmans and Olzak Reference Koopmans and Olzak2004: 19 on Germany’s extreme right attacks on asylum seekers and other right-claimant minorities; Comisión Andina de Juristas Seccional Colombiana 1992; Albarracín et al. Reference Albarracín, Milanese, Valencia and Wolff2022 on attacks against human rights defenders, prosecutors and judges in Colombia). These forms of violence produce a chilling effect on rights promotion, not only for direct targets but also for others sharing their cause. They can also lead to the forced exile of pro-rights actors, which can especially hinder rights advancements when those affected include prosecutorial or judicial agents who actively protect rights (see Benítez-Jiménez and Escobar Reference Benítez-Jiménez and Escobar2024: 92–3 on Guatemala).

Illegal non-violent reactive tactics

There are multiple illegal – i.e., legally forbidden – though non-violent reactive tactics. Some, like bribes, can be employed across institutional realms to influence politicians, bureaucrats, and judges (Ackerman and Palifka Reference Ackerman and Palifka2016), to reverse or curtail a pro-rights policy, or to dismantle a state agency.

However, other forms of illegal behaviors are specific to each realm. Illustrations include “fake news” or misinformation by news media in the public opinion realm (Schwarz and Holnburger Reference Schwarz and Holnburger2019) and clientelism in the political one (Stokes et al. Reference Stokes, Dunning, Nazareno and Brusco2013). In the executive realm, theft or cyber-attacks may be used to hijack valuable information related to rights protection guarded by NGOs (Buyse Reference Buyse2018: 273). In the judicial realm, a variety of illegal tactics may be used to prevent right-seekers from claiming justice or state actors from advancing trials against rights violators. These tactics include unfounded incriminations, arbitrary detentions, and evidence manipulation or falsification (see, e.g., Van der Vet Reference Van der Vet2018 on Russia).

Legalizing pseudolegal reactive tactics

Many of the former tactics may remain in impunity if they are made to appear legal by state agents. Legalizing tactics are one of the two forms of pseudolegal tactics we consider. They involve clear law violations that are nonetheless supplied with a legal grounding by a competent state agent.

Thus, in the public opinion realm, journalists can defend the circulation of unverified news or the use of discriminatory categories through far-fetched legal interpretations, suggesting that they do not breach rights to information or equality standards. Similarly, in the political realm, legislators may pass or block bills on the grounds of ill-intended interpretations of quorum rules.

In turn, in the executive realm, state agencies, like intelligence bodies, may conceal valuable information under the guise of archive relocation or reclassification; they may also deny access to it on the grounds of alleged confidentiality (see, e.g., MEH 2023 on Mexico). Moreover, government agents may inspect or shut down NGO offices and arrest or fine their members under rarely invoked tax regulations, with the true purpose of obtaining information, harassing, or silencing rights advocates (Van der Vet Reference Van der Vet2018: 3). Government agents can also use wiretapping against organizations and public servants promoting rights with similar purposes and under akin convoluted legal pretexts (see, e.g., IACHR 2024 on Colombia).

Finally, in the judicial realm, many of the illegal tactics mentioned in previous sections – including both those used in other realms and in the judicial arena – may be portrayed as legal by prosecutors and judges, or validated as such when overseen by courts. Since these tactics often entail the prosecution of rights-seekers, analysts refer to them as the criminalization of legal mobilization or protest (Van der Vet Reference Van der Vet2018: 2; Sieder Reference Sieder, Sieder, Ansolabehere and Alfonso2019: 57).

Discrete non-compliant pseudolegal reactive tactics

Pseudolegal tactics are in place not only when illegal acts are made to appear legal, but also when the law is violated in a discrete manner, undermining the law’s objectives or contradicting its spirit while formally complying (Nino Reference Nino1992: 42). Discrete non-compliant pseudolegal tactics formally adhere to the letter of the law, but they subvert its goals. They may hence be seen as an abuse, rather than a use, of the law, or, as Fernández and Garay (Reference Fernández Milmanda, Garay, Brinks, Levitsky and Murillo2020: 185) call it, as “‘legal’ non-compliance.”

In the public opinion arena, polarizing speech in the media may undermine the latter’s aims of freedom and plurality, while still remaining formally compliant with the rules that forbid discrimination and hate speech (Wright Reference Wright2023). In the political realm, aggressive political lobbying and campaign funding may not formally violate rules against undue inducements or funding limits, yet they may contravene the objectives of fair electoral competition and pluralism (Nyberg Reference Nyberg2021).

On the other hand, in the administrative realm, executive discretion may formally admit the promotion of decisions that impose restrictions on the registration or funding of NGOs (Buyse Reference Buyse2018: 971). However, when such decisions intentionally target rights-seekers, they undermine the institutions’ objectives of promoting rights protections, and could be interpreted as adversary persecution or “lawfare” (Smulovitz Reference Smulovitz2022).

Lastly, in the judicial realm, the promotion of slander, fraud, or corruption complaints is permitted by law when these are recognized as prosecutable crimes. But when they are used to intimidate right-seekers and drive attention away from the rights violations they are denouncing (Payne et al. Reference Payne, Pereira and Bernal-Bermúdez2021: 194–5; Van der Vet Reference Van der Vet2018: 2), such complaints subvert the very objectives that the legal recognition of these crimes is meant to fulfill.

Legal conventional reactive tactics

Legal conventional reactive tactics consist of the typical behaviors that players can or are expected to perform in each realm according to the rules of the game. For instance, criticizing opposed policies in the public opinion realm; forming parties, making-claims, or protesting in the political realm; engaging in activism to push for policy implementation in the administrative realm, and pursuing litigation in the judicial realm.

There is, in principle, little doubt about the legality of such tactics, since the law both permits and regulates them – in some cases, like party formation, it even encourages them. However, as we discuss below, when these tactics are part of a broader strategy aimed at reversing or curtailing pro-rights policies or state agencies, they can contribute to backlash.

The choice of predominant tactic in a repertoire

While pushback consists of single tactics, backlash involves bundles or repertoires of tactics with a common goal. These repertoires may combine various kinds of tactics, but we propose identifying the most frequent or predominant kind and explaining its variation.

Like the choice of realms, that of tactics is influenced not only by the first moves and initial success of regressive actors’ antagonists (Meyer and Staggenborg Reference Meyer and Staggenborg1996), but also by the formal and informal opportunities available within and across state agencies. Regressive actors are likely to mirror pro-rights actors’ legal tactics within a given state agency, for instance by pushing back against pro-rights litigation or policy implementation activism in public. Yet, we hypothesize (H4) that, if their networks are dominant within the state agency where the confrontation is occurring, the predominant tactic of regressive actors will be pseudolegal.

Indeed, drawing on the state capture scholarship (Garay-Salamanca and Salcedo-Albarán Reference Garay-Salamanca, Salcedo-Albarán, Garay-Salamanca and Salcedo-Albarán2012; Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008), we argue that pseudolegal tactics are preferable over illegal tactics because the latter are costlier, as they are more likely to be sanctioned and result in reputational and legitimacy losses. Pseudolegal tactics are also more advantageous than purely legal tactics because the latter take more time to yield results, and their outcomes are more uncertain (Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008: 67); indeed, they depend on coalitional politics and the uneven material and legal resources of contenders. In contrast, when regressive networks control a state agency, they can both call the shots and disguise actions that challenge the law as legal, without internal resistance. They do not need to convince state agents to act in their favor through either legal or illegal means, since they are the state, and can portray their preferences as the law.

Furthermore, building on the literature on the political motivations of weak institutions, we hypothesize (H5) that the choice between types of pseudolegal tactics is shaped by rule ambiguity and the specific influence on judicial and quasi-judicial agencies. As Fernández and Garay (Reference Fernández Milmanda, Garay, Brinks, Levitsky and Murillo2020: 187) argue, when even ambitious substantive rules fail to define the criteria for their regulation and enforcement, decision-makers can easily exercise discretion to contradict the rules’ intended goals. In such instances, we expect to observe discrete non-compliant tactics being preferred over legalizing ones, since rule implementation and enforcement may easily lack consistency with the rules’ objectives without necessarily violating them. In contrast, the more precise the rule, the harder it becomes to present law-violating tactics as legal (González-Bertomeu Reference González-Bertomeu2012), unless an authoritative actor legalizes them. As noted earlier, the pseudolegal tactic of making the illegal appear legal requires judicial or quasi-judicial intervention to confirm or provide a legal interpretation for it. Since this delegation carries the risk of being imperfect, it will likely be chosen when discrete non-compliant tactics are unavailable.

As the internal influence of regressive actors diminishes, they may become less capable of using pseudolegal tactics without facing internal resistance or external competition. According to the literature on the determinants of judicial accountability for human rights violations, resistance arises from conscientious state agents who are either unwilling to break the law or are committed to rights protection, and it is likely fueled by the persistent pressure from organized civil society (Lessa et al. Reference Lessa, Olsen, Payne, Pereira and Reiter2014: 76–8; Tsutsui et al. Reference Tsutsui, Whitlinger and Lim2012). On the other hand, according to the literature on state capture by criminal organizations, competition comes from rival de facto powers seeking to influence state agents as well (Yashar Reference Yashar2018).

When their influence over state agencies is contested by any of the latter, regressive actors are likely to resort to more external forms of pressure. In Table 3, this means shifting away from the center gray areas toward either more illegal (right-hand side) or legal (left-hand side) tactics. We hypothesize (H6) that, when regressive actors have the resources to deploy these tactics and believe they will be effective, they will prefer illegal tactics over legal ones and non-violent illegal tactics over violent ones. Indeed, following the literature on state capture, illegal tactics (such as bribes) reduce the uncertainty (Allen Reference Allen1974) faced by regressive actors. Further, non-violent illegal tactics are harder to detect than violent ones, making them less costly in terms of potential sanctions and reputational damage (Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008: 63). However, drawing from the literature on accountability determinants (Lessa et al. Reference Lessa, Olsen, Payne, Pereira and Reiter2014: 76–8; Tsutsui et al. Reference Tsutsui, Whitlinger and Lim2012), we hypothesize (H7) that bribes may be less effective against rightful rights defenders and conscientious state agents, in which case, violence may prevail.

In consequence, purely legal tactics are unlikely to be predominant when regressive actors have prevailing influence over state institutions or access to violence.

Full backlash

Full backlash is characterized by the ambitious goal of reversing an entire policy or dismantling a state agency that advances rights protection. Its scope varies depending on how many policies or agencies are targeted. Full backlash may be identified by the existence of a deliberate plan or counterpolicy aimed at retracting the targeted policy(ies) or dismantling the targeted agency(ies).

When full backlash is public, the plan or counterpolicy is explicitly justified by arguing the illegitimacy of the pro-rights agenda, often to gain popular support. Even though full public backlash can manifest across various institutional realms – as when regressive actors publicly advocate for the reversal of a judicial precedent – it is most commonly associated with the political arena. Full political public backlash is also typically the most ambitious in scope, since it can lead to the elimination or overhauling of multiple policies and state agencies across realms. Full backlash success requires political backing within the formal political representation field; hence, it is more likely when regressive actors are well-organized and have influence in such a field, as well as in the mass media.

A recent example is Argentine President Milei’s promotion of the Ley de Bases, which provided legal grounds for the elimination of nearly any state agency by decree, backed by an explicit – and quite popular – anti-rights and anti-state spending justification (Alvez Reference Alvez2024). But examples abound across the Americas and Europe of reactionary political leaders seeking to rally popular support for rolling back pro-rights policies, dismantling agencies in charge of their protection, or withdrawing from the jurisdiction of international tribunals that safeguard rights (Lesinska Reference Lesińska2014; Norris and Inglehart Reference Norris and Inglehart2019; Sandholtz et al. Reference Wayne, Bei, Caldwell, Brysk and Stohl2018).

In contrast, when full backlash is veiled, the plan to revert a pro-rights policy or dismantle a state agency exists but is concealed from the public, making its presence something that must be proven. We argue that full veiled backlash can be identified when a widespread or systematic practice of policy reversion or agency dismantling is occurring and is informally recognized as binding by state agents. A widespread practice is marked by the frequency of behaviors; a systematic one by the consistency of their target and modus operandi (see Gutiérrez-Sanín and Wood Reference Gutiérrez-Sanín and Wood2017 on patterns of violence). In turn, an informal binding rule can be identified when actors believe that failing to engage in the practice leads to negative consequences or informal sanctions – or, conversely, that engaging in the practice results in positive inducements or rewards (Brinks Reference Brinks2003).

Full veiled backlash may be primarily executed through discrete non-compliant pseudolegal tactics. This happens when a plan of institutional retrenchment (Hacker Reference Hacker2004) is implemented, such that a pro-rights policy is rendered insignificant (Brinks et al. Reference Brinks, Levitsky, Victoria Murillo, Brinks, Levitsky and Murillo2020) or a state agency active in rights protection is hollowed out or starved of human or material resources (Suryanarayan Reference Suryanarayan2016). The decisions through which such a plan is carried out can include replacing, demoting, or transferring qualified personnel; reducing or reallocating funds; classifying or restricting access to information necessary for rights protection, among others.

The Guatemalan case provides an example. In 2018, in response to significant progress in the judicialization of corruption and human rights violations perpetrated by political, economic, and military elites, President Morales appointed Consuelo Porras as General Prosecutor, despite her well-known ties to said elites. This shift implied the massive replacement, via removals and transfers, of qualified personnel, including the dismissal of Juan Francisco Sandoval, the head of the Special Prosecutor’s Office Against Impunity (FECI), who was handling high-profile corruption cases (Benítez-Jiménez Reference Benítez-Jiménez, Robledo, Guglielmucci and Lugo2022: 63).

Full veiled backlash can also predominantly involve legalizing pseudolegal tactics. The Colombian case of the armed forces’ “false positives” serves as illustration. Between 2003 and 2008, more than 6,000 civilians were murdered by the armed forces and falsely portrayed as rebels killed in combat. Investigations revealed that the murders were part of an informal policy ordered from above, which was enforced through rewards and promotions for those who complied, and marginalization or even murder for those who resisted. The informal policy targeted civilians due to their ideology, vulnerability, or ordinary criminal past (Uprimny Reference Uprimny2023). This strategy could be interpreted as a form of backlash against the judiciary’s application of international human rights standards to the armed forces, which had been facing increasing resistance within military ranks (Kalmanovitz Reference Kalmanovitz2018).

Ordinary pushback

The opposite extreme reactive behavior of full backlash is ordinary pushback. We discuss its contours to make the distinction neat. Ordinary pushback is characterized by the following features: (i) a narrowly defined goal – such as blocking a specific decision that advances rights, for instance, by appealing a judicial ruling; (ii) the use of a legal tactic to achieve this goal, and (iii) the isolated or infrequent application of the legal tactic (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018).

The second trait – the legality of the tactic – means that ordinary pushback is most often public, since behaviors are hidden when illegal. However, we contemplate the possibility of ordinary pushback being veiled to cover situations like informal meetings where a decision is discussed but not unduly induced (Pion-Berlin Reference Pion-Berlin2010). To be legal, veiled pushback cannot involve forbidden actions or transactions, but it can include those outside the scope of the law. This excludes pseudolegal tactics, which, as argued next, could be considered extraordinary pushback.

Extraordinary pushback

We introduce the category of extraordinary pushback to capture the many instances where regressive actors attempt to block progressive advancements in rights protection through violence, illegality, or pseudolegality. Extraordinary pushback is similar to ordinary pushback in the restricted ambition of its goal and in the singularity or infrequency of its occurrence. But it differs in the means it employs to achieve that goal – for instance, bribing or harassing a witness with slander suits to undermine evidence, as opposed to simply formulating a counter plea or an appeal to challenge the sufficiency of evidence.

The illegality or pseudolegality of the tactics involved in extraordinary pushback makes it a challenge to institutions – though a restricted one, given its infrequency. However, not all behaviors that contravene the law are equally serious, and some may hardly be considered system-defying, particularly when they involve isolated incidents (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018). That is the case, for instance, of non-cooperating or non-complying behaviors concerning courts’ proceedings or decisions (Soley and Steininger Reference Soley and Steininger2018: 241).

The overt defense of pushback that can characterize its public facet may help classify a less serious form of legal contravention, such as non-compliance, as extraordinary rather than ordinary. When a less serious form of public extraordinary pushback is justified and even celebrated by the actor as worthy of popular support, it can be classified as a challenge to the rules of the game. Examples include powerful businesspeople or politicians claiming they will not attend a court hearing due to the perceived pro-rights bias of the court, or state agents publicly defending their non-compliance with a ruling. Such boasting of non-compliance can have a deleterious effect on the authority of the decision-making agency in the concrete case. And, depending on the salience of the issue and the influence of the actor, it can trigger wider backlash. A telling example is then-candidate Trump’s aggressive criticisms of judges on social media (Brenan Center for Justice 2020), which motivated some followers to call for physical violence against them (Eisler et al. Reference Eisler, Parker and Tanfani2024).

The illegality or pseudolegality of extraordinary pushback makes it more likely to take place in a veiled form. Extraordinary veiled pushback consists of illegal or pseudolegal clandestine behaviors that influence state decision-making, giving the impression that the outcome is due to ordinary pushback. For instance, if a bribe or threat of disciplinary action prompts a judge to dismiss a case against a rights violator, the result may misleadingly appear to stem from a solid defense, unless the tactic is unveiled. A relevant illustration is the intricate case involving former Colombian President Uribe in the bribing of witnesses to alter their testimonies regarding his ties to paramilitary groups. When Congressman Iván Cepeda revealed the scandal, Uribe recurred to the pseudolegal tactic of filing a judicial complaint against Cepeda for allegedly collecting false testimonies (Jaramillo Bernat Reference Jaramillo Bernat2023). When these are isolated incidents, we can consider them pushback due to their narrow target. But when they become frequent tactics, they can lead to cumulative backlash.

Cumulative backlash

We propose a novel type of backlash, which falls between full backlash and pushback in terms of the scope of its target. Cumulative backlash involves repeated pushback reactions to the adoption or implementation of an institutional policy or practice that advances or strengthens rights protection. Although each individual reaction may seem, on its own, ordinary in terms of the goal and tactic, when considered together, these reactions can be as ambitious in scope, and as devastating in their potential outcomes, as full backlash.

Conceptual analyses of backlash agree that some forms of legal violation, such as non-compliance, may be understood as pushback when isolated and as backlash when reiterative (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018: 210–11). These analyses assume that frequent non-compliance stems from political will, and hence that it is a purposeful challenge to the authority of institutions (Madsen et al. Reference Madsen, Cebulak and Wiebusch2018: 203–4). However, in contexts where weak institutional capacity abounds, a key challenge to the concept of cumulative backlash is that it is not simply reduced to that weakness; rather, willful defiance against institutions must be demonstrated.

To address this challenge, we define cumulative backlash as a widespread or systematic practice of curtailing the advancement of a policy or eroding the functioning of a state agency protecting rights, which can be shown to be approved or tolerated by those with the power to sanction or reorient it. The main difference between cumulative and full veiled backlash is the absence of an identifiable strategy, plan, or counterpolicy from above. This means that cumulative backlash may be difficult to detect even when it occurs in public.

Public cumulative backlash’s tactics are performed in a seemingly fragmentary or disconnected way. Therefore, the existence of a widespread or systematic practice must be proven by identifying recurrent tactics with similar targets and modus operandi. One example is what the CICIG (2017) termed “malicious litigation”: the excessive or disproportionate use of legal contestation measures (such as appeals, recusals, writs of protection, procedural pleas) by defense attorneys of powerful elites accused of corruption and human rights abuses, with the purpose of stalling criminal procedures. Similarly, Payne et al. (Reference Payne, Pereira and Bernal-Bermúdez2021: 194–6) found that corporations facing human rights trials employ slander suits against rights-seekers in places like the United Kingdom, Argentina, and Colombia. In these cases, state tolerance toward the practice can be said to exist when the intent to (or impact of) hinder(ing) human rights trials is clear, yet judges allow the slander cases to proceed without inquiring into their patterned nature or correcting their course.

Cumulative veiled backlash may be harder to detect than public cumulative backlash but easier to detect than full veiled backlash. The identification criteria for veiled cumulative backlash are less demanding, since the practice need not be ordered or sanctioned from above. It suffices that the practice is wide or systematic – even if only in the low or intermediate echelons of the state apparatus – and that it is tolerated by superiors or sanctioning agencies (see Wood Reference Wood2018 on rape). Proving toleration requires showing that the latter know, or should know, about the practice, and that they have sufficient institutional capacity to reorient or sanction it, yet fail to do so. The 2016 murder of indigenous environmentalist activist Berta Cáceres in Honduras provides a stark illustration. Her organization’s active opposition to a hydroelectric project led to her harassment, surveillance, and eventual killing by a network comprising corporate elites, illicit violent actors, and state agents. Research into the case has unveiled a widespread practice, with a similar modus operandi, targeting human rights and environmental defenders beyond Cáceres’ organization (Tapias Torrado Reference Tapias Torrado, Payne, Zulver and Escoffier2022: 162–3). The extensive use of the state’s surveillance and coercive apparatuses against social leaders demonstrates that the practice was at least tolerated, but also likely approved, by high-ranking government and state officials. It also shows that weak state capacity cannot be used as a justification for the failure to sanction such practice.

Explaining variation in goals

It is evident that the more ambitious the goals of reactive patterns, the more planning, and hence strategic coordination, they imply. This relationship means that regressive actors’ organizational features and influence are again a crucial factor explaining variation. We hypothesize (H8) that the more dominant, widespread, and centralized the influence of regressive networks across state agencies and realms, the more likely they will engage in full backlash, and the broader the scope of their target will be. Indeed, drawing from the literature on rightist actors’ networks (Caiani Reference Caiani2017; Caiani et al. Reference Caiani, Della Porta and Wagemann2012), informal institutions, state capture and corruption (Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008; González-Ocantos et al. Reference González-Ocantos, Muñoz, Pavao and Hidalgo2023; Yashar Reference Yashar2018), we argue that, while isolated and peripheral actors will have limited capacity to plan coordinated strategies and will hence only be able to push for discrete goals akin to pushback, networks with dominant, widespread, and centralized influence will be capable of planning and coordinating ambitious counterreform goals, which may affect multiple state agencies across various realms.

Between isolated peripheral actors and widely influential, centralized networks, we may find networks that are dense and dominant in some state agencies but not in others, so they can promote coordinated actions therein, but not beyond. We can further find networks whose influence is loose or uneven within and across agencies, such that reactive tactics can involve frequent practices without coordinated action from above. Combining the literature on rightist actors’ networks (Caiani et al. Reference Caiani, Della Porta and Wagemann2012) and on the difference between ordered and tolerated violence (Wood Reference Wood2018), we argue that veiled backlash involving a plan or strategy is more likely in the first scenario, while in the second, cumulative backlash as tolerated practice will probably prevail. Therefore, we hypothesize (H9) that the less centralized or looser the influence of regressive actors within state agencies, the more likely they are to engage in cumulative backlash rather than in full backlash.

Outcomes

We understand the outcomes of backlash in terms of the achievement of its goals, that is, its success. We consequently propose the reversion of a policy or the dismantling of a state agency promoting rights protection, the curtailment of the policy’s scope or the agency’s mandate, and the blocking of a specific pro-rights’ decision as the basic indicators of full backlash, cumulative backlash, and pushback success, respectively.

One might assume that the more ambitious the goal, the harder it is to achieve. However, the realm in and means through which the goal is pursued can make more ambitious goals easier to attain. Drawing from the literature on state corruption and capture, we hypothesize (H10) that backlash promoted through the backdoor of the state primarily using pseudolegal tactics will likely be more successful than other forms of backlash. This is because, first, regressive networks’ influence reduces state impartiality, and hence, decision uncertainty (Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008: 66). Second, pseudolegal tactics are harder to detect and challenge. By engaging in behaviors that have the appearance of legality, the likelihood of being detected, investigated, or sanctioned significantly decreases (Garay-Salamanca et al. Reference Garay-Salamanca, Salcedo-Albarán, de León-beltrán and Guerrero2008: 59). Moreover, regressive networks can leverage their institutional influence to cover up their illegal behaviors (González Ocantos et al. Reference González-Ocantos, Muñoz, Pavao and Hidalgo2023: 4).

The factors commonly cited in the rights revolution literature as favorable to the advancement of rights may only limit the success of veiled backlash under certain conditions. The support structures of social movements advocating for rights (Epp Reference Epp1998) can leverage legal resources to identify and challenge illegal and pseudolegal tactics in court. But such effort may be similar to that of David against Goliath unless support structures can identify and defy veiled backlash as a plan or practice. As the literature on the struggle against impunity for human rights abuses has shown, the development and dissemination of legal innovation strategies by NGOs is critical to advancing the judicialization of crimes (González-Ocantos Reference González-Ocantos2016). When faced with complex criminal networks and veiled backlash strategies, legal innovation may require the support of social scientists skilled in gathering large amounts of hard-to-access data and employing techniques for network analysis and pattern detection, which can serve as grounds for structural litigation cases. An illustration of the potential for this type of support can be found in Waxenecker et al. (Reference Waxenecker, Nicolás-Carlock and Luna-Pla2025), which analyzes cases investigated by CICIG using a multilevel network approach that integrates criminal networks of actors, offenses, and their prosecution. The study identifies structural patterns in prosecutorial strategies, and concludes that prosecutorial strategies to identify and dismount complex criminal networks can be enhanced by focusing on interconnected networks and addressing a broad spectrum of criminal behaviors within them. Based on these insights, we hypothesize (H11) that the more social movements incorporate techniques for identifying and exposing informal plans and practices in their legal mobilization strategies, the greater their ability to disrupt the success of veiled backlash.

In turn, progressive bureaucrats (Anria et al. Reference Anria, Garay and Rich2024) and judges (Pereira Reference Pereira2022; Uprimny and García-Villegas Reference Uprimny, García-Villegas and de Sousa Santos2005) can resist the pressure to comply with veiled backlash by continuing to issue pro-rights decisions. Yet, if it is limited to a handful of state agents and is not concerted nor promoted from above, such resistance can look like an oasis in the desert and lead to escalating violence against its promoters (see, e.g., Albarracín et al. Reference Albarracín, Milanese, Valencia and Wolff2022; Comisión Andina de Juristas Seccional Colombiana 1992; Inter-American Court of Human Rights (IACHR) 2024). We thus hypothesize (H12) that the more state agencies maintain purposeful independence from regressive actors’ networks and actively recruit pro-rights bureaucrats and judges, the less veiled backlash is to succeed.

Finally, transnational mobilization (Keck and Sikkink Reference Keck and Sikkink1998) can generate significant international pressure and foster sophisticated mechanisms for unveiling and challenging veiled backlash. A recent trend in such mechanisms is the establishment of international or hybrid commissions tasked with investigating large-scale human rights violations, corruption, and macro-criminality to overcome structural impunity at the domestic level (Hudson and Taylor Reference Hudson and Taylor2010: 54–5). However, as the CICIG’s experience shows, such mechanisms can backfire (Bowen Reference Bowen, Botero, Brinks and Gonzalez-Ocantos2022): their results can lead regressive actors to escalate radical forms of backlash against them, leading to their dissolution. A similar fate befell the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), which was dissolved by the government in 2020 (Call Reference Call and Pozsgai-Alvarez2021). In such contexts, only shifts in the political balance of power seem capable of counteracting these outcomes. Therefore, we hypothesize (H13) that the more transnational mobilization is accompanied by domestic political shifts favoring pro-rights agendas, the more it is to impede the success of backlash.

Veiled backlash is a problem that likely demands more than the typical strategies for advancing rights. The influence of illicit networks on state agencies does not only lead to the reversal of pro-rights policies or the elimination of pro-rights state agencies; it also undermines the state’s role as a forum where rights claims can be made and given fair consideration. Addressing this issue may require the establishment of broad, multi-level pro-rights networks, alongside the redesign of transnational governance institutions specifically focused on preventing state capture and dismantling macro-criminality (Ferrajoli Reference Ferrajoli2023). These strategies may prove especially challenging in the current global context, marked by the rise of popular extreme-right governments with an explicit anti-rights agenda.

Concluding remarks

This paper proposes a conceptual framework and outlines a research agenda for analyzing backlash against rights. It offers a comprehensive definition of backlash – and, more broadly, reactive – patterns, identifies its key dimensions, uses typologies to explore variation across these dimensions, and formulates hypotheses to explain such variation. We hope this framework can be useful for future empirical works. Of course, researchers will need to identify specific indicators, operationalization strategies, and hypotheses tailored to the particularities of their topics and contexts. But the concepts, indicators, and hypotheses presented here may provide a blueprint, enhancing comparability and stimulating dialogue among studies of backlash across diverse fields and subjects.

The paper’s main contribution is the concept of veiled backlash and the identification of the specific actors (illicit networks), realms (the backdoor of the state), goals or targets (the dismantling or cumulative curtailing of policies or state agencies), tactics (pseudolegal actions), and outcomes (a higher likelihood of success) associated with it. Veiled backlash is a potent mechanism through which pro-rights policies and state agencies can be curtailed or reversed. Yet it has received scant attention because it occurs largely out of the public eye, often employing tactics that appear legal and that produce effects gradually over time, not immediately. Given its elusive nature, much of the paper’s conceptual effort is devoted to proposing definitions and indicators that can help identify veiled backlash, ensuring it is not mistaken for less severe forms of reaction – like pushback – or for non-intentional problems within state institutions – namely weakness.

It is crucial to distinguish between reactive strategies and the structural obstacles that hinder progressive advancements in rights protection in weak institutional contexts, such as a lack of resources and technical capacities. The concept of veiled backlash aims at that precisely, by identifying political will as the crucial factor driving reactive tactics like institutional packing, hollowing out, and the selective non-sanctioning of rights violators. Future empirical work should focus on developing precise identification and measuring strategies to clearly separate intentional institutional weakening from weak institutional capacities.

Our discussion of veiled backlash makes it evident that regressive networks tend to have significant advantages in resisting progressive change vis-a-vis pro-rights social movements. Indeed, the latter rarely have internal influence within state agencies and, when they do through activist bureaucrats, they lack the power to control entire state agencies. Their main risk is, rather, being coopted or absorbed by stronger political parties (Garay and Anria Reference Garay and Anria2024). Moreover, due to their commitment to human rights and democracy, and to the accountability exercised by their grassroots (Mayka Reference Mayka2019), it seems unlikely that progressive social movements will resort to clandestine violent or pseudolegal tactics. This makes them rest on quite an uneven foothold, relying solely on legal – conventional, or, at most, discrete non-compliant – tactics to advance their causes, for which their resources tend to be significantly meager (Galanter Reference Galanter1973).

This pattern helps explain the sense of pessimism about the rights revolution in recent literature. According to Botero et al. (Reference Botero, Brinks, Gonzalez-Ocantos, Botero, Brinks and Gonzalez-Ocantos2022: 11), de jure rights conquests have largely remained on the books or been reversed by backlash due to weaknesses in state capacity and entrenched vested interests. The conceptual apparatus and research agenda we propose can help unpack the mechanisms by which these vested interests lash out against progressive change from within weak state agencies. This proposal can hopefully also be useful for thinking about the institutional reforms and social and political forces needed to counter such reactions. In this sense, we seek to contribute to the growing literature on progressive policy entrenchment, which has urged studies to focus not only on progressive movements that promote policy implementation but also on the conservative actors who dig in their heels to block such efforts, thereby preserving or exacerbating existing inequalities (Anria et al. Reference Anria, Garay and Rich2024: 19).

While we propose general indicators for identifying variation in the strength and influence of regressive actors, much more empirical research is necessary to investigate the specific configurations of regressive networks, such as the sectors that compose them, their internal balance of power, the pacts that sustain them and how they are enforced, how external competition affects them, the types of resources they have, and how they impact the scope and nature of their influence on state agencies. Future conceptualization and empirical case studies are also needed to understand how legal mobilization and backlash patterns evolve over time within the historical trajectories of different countries during different periods. We hope our paper will inspire such studies.