Conceptualizing ‘legal resilience’ against the populist assault on migrants’ rights

The (renewed) rise of ethno-nationalist and authoritarian populism in Europe poses distinct threats to the realization and protection of migrants’ rights. This presentation investigates when and how the law can offer resilience against populist threats to migrants’ rights. It builds on insights from political science, constitutional law and environmental law to conceptualize the notion of ‘legal resilience’; and applies it to the migration context. The core argument is that legal resilience is best conceptualized as operating in two stages. In the first stage, the focus is on how resilient the legal system itself has been in the face of populist onslaught. In the second stage, the focus shifts to how the legal system can (still) provide for legal resilience against restrictive migration laws and policies. The two-stage analysis is helpful to understand if, how and where sources of legal resilience against the populist assault on migrants’ rights can be identified across countries.